





























































































































































































































































































































































































































































































































































































































































































































































































i 



s 

% 


























































NUMBER 28 

OCCASIONAL PAPERS 

ENGINEER SCHOOL 

UNITED STATES ARMY 


Report on the Construction of 
Lock and Dam No. 4, 
Ohio River 


BY 


E. N. JOHNSTON, 

First Lieut., Corps of Engineers 
United States Army 


WASHINGTON BARRACKS, D. C. 

PRESS OF THE ENGINEER SCHOOL 

1908 


































S 






j. . 



































V 














it 





V 











Plate XXXVIII. View of Lock, showing first 250 feet of Dam during Construction. 









NUMBER 28 

OCCASIONAL PAPERS 

'.'.S ENGINEER SCHOOL 

UNITED STATES ARMY 


I . 

Report on the Construction or 
Lock and Dam No. 4, 
Ohio River 

BT 


E. N. JOHNSTON, 

First Lieut., Corps of Engineers 
United States Army 


- • / 

I 

. > 

11 1 

> A J 

WASHING I ON BARRACKS. D. C. 

I’KESS OF THE ENGINEER SCHOOL 

1908 


“327 















Examining Board, 

New York City, August iq, 1907. 

The Adjutant General, 

U. S. Army , Washington, D. C. 

Sir: In General Orders No. 128, War Department, July 12, 1906, in the first 
paragraph on page 12, referring to papers submitted by the officers examined, it is 
stated that “Papers of special merit may be published for the information of the 
Corps” (of Engineers). 

2. At his recent examination for promotion, First Lieut. E. N. Johnston, Corps 
of Engineers, submitted the accompanying paper entitled “Report on the Construc¬ 
tion of Lock and Dam No. 4, Ohio River,” which the Examining Board deems of 
special merit and recommends be published for the information of the Corps of 
Engineers, after Lieutenant Johnston has revised the paper and made such additions 
and remarks as he thinks of value and serving to bring it up to latest practicable 
date. 

Very respectfully, your obedient servant, 

John G. D. Knight, 

Colonel , Corps of Engineers , 

President of the Board 


D. OK ft 
MAR 27 1908 




THE NORRIS PETERS CO., WASHINGTON, O . C. 








































































































The Construction of Lock and Dam No. 4, 
Ohio River. 

The construction of Davis Island Dam, the first of the Ohio 
River movable clams in distance from Pittsburg and in date of com¬ 
pletion, and also the first of the Chanoine type built in the United 
States, was recommended in a plan proposed in 1874 by Maj. W. E. 
Merrill for the radical improvement of the Ohio River from Pittsburg 
to Wheeling. Major Merrill’s report and plans were approved by a 
board composed of Lieutenant-Colonel Wright, Majors Weitzel, Poe, 
Merrill,, and Lieutenant Mahan. The plans were strongly opposed 
by the navigation interests, as it was claimed that there would be de¬ 
lays in lowering the dams, which would seriously interfere with the 
freshet system of navigation for fleets of coal boats and barges, and 
that the dams could not be made sufficiently water-tight. However, 
the Engineer Department was ably represented by Major Merrill, and 
by the board of officers convened to consider the objections; and the 
lock and dam at Davis Island were built as proposed and opened to 
navigation n 1885. To-day the navigation interests of the Ohio 
Valley are clamoring for early favorable action by Congress on the 
report of the survey of the river, completed in 1906, to determine the 
feasibility, cost, etc., of the improvement of the entire river by canali¬ 
zation from Pittsburg to Cairo. 

Lock and Dam No. 4, Ohio River, is located at Legionville, Pa., 
about 19 miles below Pittsburg. The name of the place is a result of 
the encampment of an army commanded by Gen. Anthony Wayne and 
known as " Wayne’s Legion, ” on the hill back of the lock site. This 
was during the winter of 1792-3, when General Wayne was en route 
to subdue an Indian uprising in the Northwest Territory. 

Plate I is a general plan of the lock and dam. 

When first planned, the designs were based on a navigable stage of 
6 feet with the dam raised; later Congress authorized changes to be 
made so as to provide for a navigable stage of 9 feet. The normal 
lift of the dam is 7.6 feet. 

THE LOCK. 

The lock is 110 feet wide and 600 feet long in the clear between 
gates. Plate XXXVIII is a v ; w of the lock. 


2 


The river wall of the lock is of natural cement concrete, faced on 
the river side with Beaver Valley sandstone ashlar masonry and on the 
lock side with oak sheathing timbers. The ends of the river wall, 
outside of the lock proper, are faced with masonry, and pierheads rise 
at each end to a height of about 6 feet above the top of the coping of 
the wall. 

The lights used as danger signals are placed on posts set upon these 
pierheads. The district regulations require the lights to be main¬ 
tained as follows: 

At the upstream end of the wall, three lights in the safne vertical 
line when the dam is down, and in the* same horizontal line when the 
dam is raised. At the downstream end of the wall, two lights placed 
in the same manner as at the head of the wall. 

The posts designed at Dam No. 4, for holding these lights and 
readily changing their positions, were constructed as shown in Plate II. 

The only known advantages of the pierheads are (1) that they ex¬ 
tend somewhat the period of time during which lights can be kept 
lighted on the walls during rises of the river; (2) that they cause 
breaks in the water surface, which serve as guides to navigators, until 
the water rises to a height of about 10 feet above the tops of the pier¬ 
heads, and (3) they are sometimes considered to give a finished archi¬ 
tectural beauty to the wails. On the other hand, there have been few 
rises in the river at Dam No. 4 in which the water did not go above the 
top of the pierheads if it rose above the top of the wall proper. Dur¬ 
ing the spring of 1907, a steamboat struck a pierhead at Dam No. 3, 
in the fog, at a time when the water surface was just above the top 
of the pierhead, and sank; if the wall had had no pierhead the boat 
would have passed over the wall in safety. 

Snubbing posts for the attachment of lines are provided on all the 
lock walls. They are made of extra heavy pipe filled with concrete 
and provided with a cap. The construction is as shown in Plate II. 
The advantage of this style is that the large diameter of the post 
makes it better suited for use with large lines than is a smaller solid 
post. 

Sections of the lock walls are shown in Plate III, and sections of 
the recess walls in Plate IV. 

The land wall of the lock is of natural cement concrete; it is faced 
with oak sheathing timbers and has a sandstone coping course. The 
wooden sheathing was intended to prevent abrasion of the walls by 
the edges of coal boats and barges, and by the projecting bolts and 
corner bands with which they are provided. The sheathing was sup- 



































































































































































































































































































































Seat 1070 of Gate, 7 ?e c & ss 




Wet Us 


THE NORRIS PETERS CO., WASHINGTON, D. C. 


TVatoZZ 


























































































































3 


posed to be designed so as to be easily removable, the intention being 
to replace pieces from time to time as they became worn, or rotted, 
due to alternate wetness and dryness. The construction was as fol¬ 
lows: Pieces of 12 by 12 inch oak were fastened to the walls ver¬ 
tically at distances of 6 feet apart, center to center, with 1-inch bolts 
spaced 5 feet apart, center to center. Each bolt had a T-head which 
was held by a casting at the rear end of a pipe surrounding the bolt, 
the pipes being embedded in the concrete. The object of this style 
of fastening was tc permit of easy removal of the bolts in case of 
deterioration. The heads of these bolts were not inclosed in the cast- 
i igs, but small recesses were built around the boltheads with bricks 
to prevent the heads being held by the concrete and their turning thus 
prevented. It is believed that it would have been better if the cast¬ 
ings had been so made as to form in themselves an efficient seal 
between the concrete and the boltheads. Horizontal timbers of 6 by 
12 inch oak were fastened outside of the upright posts by bolts having 
their nuts fastened in the back of the posts, the bolts being screwed 
through the horizontal and vertical timbers into the fixed nuts. 
This scheme was not perfectly successful, as it has been learned this 
season while removing the timber face of the land wall that very many 
timbers have to be cut because the nuts turn with the bolts; this is 
probably due to the rotting of the timber near the nut and the stick¬ 
ing of the bolt to the nut. Had the bolt threads been well doped 
with graphite or red lead, and had the nuts projected back into the 
concrete, it is possible that no great difficultv in replacing the timbers 
would be experienced. 

It is not believed at the present date that such a wooden sheathing 
for a concrete lock is desirable, although it was probably proper to use 
it at Lock No. 4, because of the comparatively small resistance to 
abrasion of the concrete in general use at the time the lock was built. 
At that time natural cement concrete was being used very largely in 
this country because of its comparative cheapness and the fact that 
most Portland cement had to be imported. Since that time the man¬ 
ufacture of domestic Portland cement has increased to a marvelous 
extent, and the price has correspondingly decreased. 

Some of the natural cement walls at Lock No. 4, especially the 
walls of the gate recesses, have not stood well the effects of alternate 
freezing, thawing, etc., and there are open cracks between a great 
many of the horizontal layers of concrete, these cracks being probably 
due to the quick time of setting of the cement used, and to slowness 
in placing the concrete after it was mixed. There have been also 


\ 


4 


marked expansion effects of the concrete, due probably to the presence 
in the cement of expansives. The gate tracks at the entrance of each 
gate recess were found to be pushed together until the gauge was 
about 1/4 inches too narrow. This was believed to have been caused 
by the expansion of the land wall and guide walls. The tracks had 
to be taken up and reset, the lock being pumped out for this purpose. 
However, the defects of the concrete in the lock walls may not all be 
due to poor cement, as the aggregate consisted of material which was 
dredged by a dipper dredge from the bed of the river nearby and used 
without separation or washing. 

The cross-sections of the land wall and recess walls of the lock appear 
from the drawings on file to have been designed in accordance with 
the method given on page 688 of Trautwine’s Engineer’s Pocket 
Book. This method is simple and probably as good as any of the 
theoretical methods, though not resulting in as safe a wall as would 
result from the use of Rankine’s formula for the earth pressure. The 
drawing indicates that no determination was made of the stability of 
the wall against overturning about the bottom of the superstructure, 
but only with respect to overturning about the bottom of the founda¬ 
tion, although the foundation is supported in front by the floor of the 
lock. 

The drawing shows that the assumptions made were as follows: 

Weight of concrete = 125 lbs. per cubic foot. 

Weight of gravel back-fill = 135 lbs. per cubic foot. 

Angle of repose of gravel = 33° 41' (slope 1). 

Apparently no account was taken of any water pressure on the back 
of the wall, except as indicated in the rather high weight of back¬ 
fill, w hich would correspond to a saturated gravel. Some determina¬ 
tions which were made at Dam No. 4, during the past winter, gave 
the weight of dry gravel filling to be approximately 110 pounds per 
cubic foot; and gravel with voids filled with water, approximately 
132 pounds per cubic foot. It appears that no account was taken of 
the upward water pressure on the bottom of the wall, notwithstand¬ 
ing its being founded on gravel. 

’ From the cross-section of the land wall it is seen that the width of 
the base of the part of the wall above the foundation, as originally 
built, was just 37/4 per cent of its height. Immediately after the 
filling was placed back of the land wall there occurred a slight move¬ 
ment of the wall. As the change in navigable depth from 6 to 9 feet 
necessitated an increase in height of the land wall at Lock No. 4, 


9 


P)a,tz V 










































































































































































































5 


/ 


consideration was given during the past spring to the proper method 
of raising the wall. Of course, if the wall were simply raised with¬ 
out raising the filling back of it, it would be more stable against over¬ 
turning than it was before; however, it is desirable to raise the filling 
to the height of the top of the land-wall coping so as to have a level 
esplanade for about 30 feet in rear of the wall. 

It was decided that the wall would probably continue to stand, 
because of the fact that the filling had been compacted from long 
standing, even if the raising and back filling were done without mak¬ 
ing an increase in the thickness of the wall; but since the lock would 
have to be unwatered for other purposes this season and since the 
wooden sheathing would have to be replaced sooner or later bv some¬ 
thing more durable, it was decided to remove the timber sheathing 
and face the wall with good Portland cement concrete. The plan 
adopted for this work is shown in Plate V. The iron bolts originally 
used to hold the vertical timbers to the wall were grouted in place; 
sleeve nuts, each having a projection with a plain round horizontal 
hole at right angles to the tapped holes, were screwed onto the pro¬ 
jecting ends of the bolts; 24-inch round steel rods were passed hori¬ 
zontally through these holes; back of these rods were placed diagonally 
? 4-inch twisted steel rods wired firmly to the horizontal rods at the 
intersections; these diagonal rods were bent at the top and projected 
well toward the back of the concrete block which was placed on top 
of the old concrete. All rods were kept 6 inches from the face of the 
new concrete so as to prevent their being caught in case of abrasion 
of the face of the wall. The forms were held by short bolts screwed 
into the outer ends of the sleeve nuts; the bolt holes in the concrete 
were filled with mortar after the forms had been removed and the bolts 
withdrawn. After the new concrete had been placed, the old coping 
stones were set on top of it, as indicated in the figure. By this method 
of construction a face was obtained which will probably be firmly held 
to the old concrete and which will materially strengthen the wall. 

Just how the effect of water pressure on the back of a land wall 
should be taken into account in designing the wall is a much discussed 
question. It is understood that in making tentative designs for the 
land walls of the Panama Canal locks, the pressure on the back of the 
wall was determined by Rankine’s formula for walls without a sur 

charge P = i wh 2 y\ -j n w hich w, the weight of back-fill, 

’ 1 + sin (f 

was taken at 125 pounds, and f, the angle of repose, was taken 
at 19° 30'. Under these assumptions the formula reduces to P = 



6 


31.25 h 2 , which is exactly the horizontal pressure the wall would be 
subjected to if it were a masonry dam with the water surface at the 
elevation of the top of the wall. This is a high pressure and higher 
than a retaining wall would ordinarily be subjected to. I understand 
that usually this method gave a base width of about 65 per cent of the 
height of the wall. 

When the walls were designed for the Cascade Lock, Oregon, the 
total pressure back of the walls was taken to be the sum of the earth 
pressure and the water pressure each taken separately (page 3375, 
Report of the Chief of Engineers, 1891) ; this was stated to be severe 
but safe. The resulting wall sections are very large; however, it 
must be remembered that when a lock is unwatered for repairs or tor 
other purposes, the back of the land wall is ordinarily subjected to a 
certain amount of water pressure; and this pressure should be consid¬ 
ered in designing the wall. Moreover, it is considered good practice 
not to neglect the upward pressure on the bottom of a wall unless the 
wall is founded on an impermeable substance. 

In making preliminary sketches of the land wall for Lock No. n , 
Ohio River, during the past winter, the pressure back of the wall was 
derived from Rankine’s formula as given above, two different sets cf 
assumptions being made as to conditions back of the wall: 

First assumption— 

Weight of wet filling = 135 lbs. per cubic foot. 

Angle of repose = 30°. 

Second assumption— 

Weight of dry filling = 105 lbs. per cubic foot. 

Angle of repose—45°. 

And that water pressure acted against the back of the wall to a 
height of 12 feet above sill level, that being the top elevation of the 
Poiree cofferdams generally used to unwater the locks. 

A resultant of the forces acting on the wall was determined under 
each assumption, and the wall was so designed as to make one of the 
resultants come about as far inside the middle third of the base as the 
other one came outside of it—neither of the resultants to pierce the 
base outside of the "middle half.” These assumptions gave bases 
running from 55 per cent to 60 per cent of the height of the wall. 

When Lock No. 4 was designed, it was probably considered that 
little danger of undermining the lock walls existed, because little pre¬ 
caution was taken to prevent undermining. The river wall and the 
land wall rest on gravel, 13>4 feet below sill level, but no foundation 






































































































7 


/ 


piles were used nor were the walls adequately protected by sheet piles 
or otherwise. Later experience in this district has proved that all lock 
walls must be thoroughly protected against undermining of the foundations. 

The pass will always be lowered commencing at the pier, and by 
the time the portion of the dam adjoining the lock wall is lowered 
the current will have little scouring power. However, there are 
times, especially during construction, when the currents in the sec¬ 
tion of the river at the lock site are very swift and possess great 
scouring ability. Early in the summer of 1905 the conditions at the 
head of the river wall at Lock No. 4 were as indicated in Fig. 1, 
Plate VI, and the wall had a vertical crack from top to bottom about 
50 feet downstream from the head of the wall. Evidently the condi¬ 
tions had previously been even more serious than when the soundings 
were taken from which the sketch was made. A large quantity of 
riprap was at once placed in the hole and for some distance all around 
the pierhead. 

In order to prevent leakage, which might interfere with the opera¬ 
tion of the lock, a row of sheet piling consisting of 4 by 12 inch 
planks, without splines, was driven along the outside of the upstream 
half of the river wall and along the inside of the downstream half of 
that wall. These sheet piles were not intended to prevent danger from 
scour; and the most vulnerable part of the river wall, the part below 
the dam, was protected for part only of the length, and by nothing 
except a crib about 5 feet deep,the purpose of which was to prevent scour 
due to the emptying valves of the lock, a similar shallow crib being 
placed inside the wall in front of the filling valves for the same pur¬ 
pose. During the construction of Dam No. 4, it was found necessary 
at one time to shut off all of the river except about 480 feet, the open 
river width being about 1,250 feet. This condition lasted for quite 
a while and at times of rises the currents through the openings were 
very swift At a later date, when the lock was coffered off and all of 
the rest of the river was closed, except a channel 400 feet wide next 
to the river wall, the conditions were even worse; and it so happened 
that a series of rises lasting about a month occurred before the lock 
cofferdams could be removed. During this time the ascending boats 
had great difficulty in getting by the lock, all of them having to assist 
themselves with lines on the river wall attached to their steam cap¬ 
stans. Some of them remained two or three hours endeavoring to 
stem the current, being able to travel in this time only 600 feet. 
The scouring effect of the current itself was probably increased by the 
scour caused by the turning of the stern wheels of the steamboats. At 


8 


any rate, it was learned that scour was taking place along the outside 
of the downstream end of the river wall and outside of the upstream 
end below where the riprap had previously been placed. The condi¬ 
tion at the lower end of the river wall was about as indicated in Fig. 
2, Plate VI. The great current prevented accurate sounding, and it 
was impossible to take soundings at any distance from the wall except 
from a steamboat. The wall was at once protected by about 800 cubic 
yards of "one man" riprap thrown by hand from the wall, the work 
being carried on day and night without stopping until the wall was 
believed to be safe. As soon as possible the lock cofferdams were 
removed. When their removal was begun, the dams were covered 
with 3 feet of caked ice and the lock chamber had been filled with 
floating ice to a depth of 3 or 4 feet; this had to be broken and partly 
removed before a diver could go down to remove the Poiree trestles 
used to sustain the needles of the cofferdams. Care was taken to wait 
for a day when the temperature was above freezing so that ice would 
not form in the air valve of the diver’s helmet upon his leaving the 
water. Except for the discomfort due to cold hands, etc., no especial 
difficulty was experienced by the diver in working during the winter. 

The guide walls as well as the other lock walls were built on gravel 
without any supporting or protecting piles. The bottom of the lower 
guide wall is onlv 2/4 feet below the level of the lower lock sill, and, 
not being protected by sheet piles or otherwise, would probably be 
undermined in case any accident to the lock gates should permit a 
flow through the lock chamber. Sections of the guide walls are 
shown in Plate III. 

It seems that when the lock was built the lock floor consisted of 
two layers of 2-inch hemlock planks, placed about 1 foot above the 
elevation of the bottom of the foundations of the lock walls and then 
covered with 12 feet of gravel. The object of this floor was not to 
prevent danger from scour but to stop any leakage under the walls 
which might prevent or delay unwatering the lock. This floor was 
of little use in stopping scour. To prevent accidents to the walls by 
scour in the lock chamber, the chamber at Lock No. 4 was paved in 
1905, for a depth of about 4 feet, with large riprap, the stones run¬ 
ning in size from about 8 cubic feet to about 1 % cubic yards; they 
were placed under water from a derrick boat, the lock chamber'being 
first graded by a dipper dredge. 

All the lock walls have stood during construction conditions which 
are probably as severe as any they will be called upon to meet, except, 
possibly, the scour which would result from an accident, such as 


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rr 


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0 - 


AW 


—t—'*- 33 « S2.S - 64-/7/63. = pres.perft 
£-*/7' Z.7S *77,646 Jbs.* fires on each of If, tf 
110*367*76.765* 62.5 = 40 t 786/bs .» fires an both ro/xes. 
£ (40.786) * 20,393 Jbs- ~ *• va/re. 


£ bearings. 


e j* v f 

i 1 

75 h =R d * §(/7646)/bs *7/764 /6s. 

R g * Z03S2+/6S. 

R e = >% = /<?/£>£ /Aar. 

Pfj = /bs. 

Ff e due. to >£= *(l7646)~H764/bs. 

P c ■■ - £ (20393)^/0 /96 /bs. 

Tata! /% = 2/960 /6s. 

7?,- f? e ^/? +% ff e - 7/764+% 2/960 * ^-27** /As. 


Summ ary of PteacT/or/s at /tain Fosts ff Pf & c - 


Due To 



/ A. 2 

92 34 /bs 

24/Z Jbs 

3 

US8 8 * 

S794 

Cone, toocts 
\(X&Y i ottop 

S3 7f0 

/2/0O 

tronsmi/ted tti/ia 7577. 


77646 

/bto/ 

74602 

439SZ 

4 39S2 

R. + P T - //ass4 ■■ 



*2 0356 


-©.«•-• 

m - : 6yg~ 

-*1 


- is. a s —-* 


* 





Pressure of / & 2 - 2 » L37S’*/4.33 * ■ 

= 17646 /6s. 

Pressure of 3 * 167 > /B 2 S* 'J££* 62.S 
= / 7 - 5 SZ /Z>^. 


She tvs tva/gr pressure 
/re onsm/i/ed dire.ch¬ 
ib posh 

f s *B.M. du.e 7b pressures / & 2 

Pressure due /o /St2 • 17646 /6s. 

R m due to / &2i y.SS--r-t8 2S*17646 = 9Z34 tbs. 

2j R r " "/ *{*.73+3.92)416.23*17646- 84/2 /6s. 

B.M. * R m *Oa* 9234 *3.92 * 36/97 ft Jbs. 

* 36797*72 - 434364 /neb /bs. 


'iff. n- 7 # Pres due A / *2 represented by TYa 


<£2*. d.es 


.. . 3 


- rxo 



Pox. B.M.- 3.66*43700* 12 

* 20/8.U7 in/6s. 


Graph leaf Check of 3. ft. 

7n Fbdt 

Secies 


i Z. 0,000 

i"~ s’ 


2 B M due To pressure 3. 

Pressure due 6 3 ■ /7382/bs. 

R r due P> 3 2.7^733^ S794 /bs. 

Pressure Z« 7*7.6/* 1433*1433* £ * 62 S--10657/bs. 
[/%.• 1433-ZaT* 4.78}* /2 
= 5794 *14.33-10652 * 4JS]* 12 
•385344 inch /bs. 


3 ^ B.M. due to concentrated /cads 

R r due to cone, loads * 4S488^^ + 20392 2g£. 

=[178313+ 42d/7j± /3.2S - /2/00 /6s. 
Ff. "' - - " » 43488 gj* +20392. ‘**%*2*~ 

-S3780 /bs. 

B.M. - 12100*1433 */2 = 208/200 inch /bs. 


Sum mary 

/3b B.M. due lb /& 2 - 434364 inch /bs. 

2"/- . •• 3 * 3 8S 3 44 

3 rd - ' “ cone /cads =2081200 


C/fecd^. 


/ 0 i 9 a 
/2 87SO 


pres, on one enJ/rc pane/. 


f Pres on one en/ire pone/ - /2.67* 78-/8 *£* 6 , 2 .S '« 128 2&4 /As. 
Up ter Puss bane/ 7aod = j * /28 284 ~ 4276/ /6s. 

Same by c/e/oi/ed me/hod 43 sps /6s 

77/ffere nee caused by 7b/res tAremnp /rad /a axes. 

. Assume 44000 /bs as pane/ /rad af Tap /buss. 


2900 908 

Section modulus = 290./ Supplied by 2- 20 m. BO /b. I *• 

<Sfresses in Lock Ga/es. 

Pbne/ bands etc 1 . 


0. Washington, i 


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£ i -6 


Stresses tn 


L ocA Gates . 


Mo/n Truss. 


THr NORRIS PETERS CO., WASH I NOTON. O. C. 


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To find location of /tar.B' M.in a beam 

subjected fo water pressure 


O • fit of fit ox. B M. 

/v. to to/ pressure anal is represented by the 
Tr/ angle A B C 

Max 0. M. '(BMJ a - /? X - ^ A OE(jfJ 

- ^-A£C7#y= 

differentiate and place c E~fL—ft^a 

0~ ", <? !£xfi ±-Xp 
U 3 " JF 3 6~ 

Whence ** Jj *"* Max &M is ci/st. f. from A 


B.M. m ATIV due to V. , </ flu It 


K 




/V 




27 rr —*f-— 2.7 r- 
ds - 


S&'rZ** i 


res 2 T382 3SB2' 


X? J&&.23 


B.M&S.M,n V t . %,& f 


B.M. Sc SAf in H fanaiy/i"cat method) 



„ _ hixx, X^]_ /7<44X8.33/,. tree 1 - \ 
Max. 0 h). - 2 T < /- jvy- 5 --C ' ,^. 3s m.) 

* *?- 8997 f 7 77 S) = 3809 S~ fi. lbs 
- 38093*12 = 3 - 37/30 in. Us. 

S M. = 7 Supplied by at- d-zd* I. 


B.M. &S.fif. /n Mitre Axte fit^ 

Tofia/ pressure = 203£>3 /bs - 

3M * 20393 * dr*72 * £ = 168 2d-2 m. tbs. 

s ° 

U.S yjr^V 3 

/6.S- -~-r^ 77 ^~ 

jL 

Z. 7, 

rC~ srS 

3. At. & S. M. to Iff. 
ff 9 * 20393 /bs. 

33 - j£ 7 » ?- a3 X>3 y 3h 7fij 2 a 223S26 , n Jbs 


a i 

&<?</€ 


2.7S 

A8L.7S 

i < 

- ^ 

k 

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= 3332/2 meb'/bi¬ 
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Plate XI. Upper Lock Gate, Dam No. 6, Ohio River. 




















9 


broken lock gates, or the scour caused by constant turning of steam¬ 
boat wheels along the lower guide wall. However, it is believed to 
be wise to design all parts of a lock so as to be absolutely safe against 
all of the causes of failure which can reasonably be foreseen. 

The style of lock gate used is the rolling gate, the first gate of this 
type having been designed by Major Merrill for use at Davis Island 
Dam. The gate consists of a horizontal steel Pratt truss, supported 
by steel posts and braces on rolling trucks, the gate in opening being 
rolled back into a recess 125 feet long. The truss serves to support 
the upper ends of vertical beams which support the horizontal wooden 
sheathing which acts as the water seal. The lower ends of the ver¬ 
tical posts are supported against the gate sill, so that two-thirds of the 
water pressure is supported by the sill and one-third is carried through 
the truss to the walls at each end of the gate. The calculations used 
in designing the lock gates for Dam No. 4, and general sketches of 
the gate, are shown on Plates Nos. VII, VIII, IX, and X. Plate XI 
is a photograph of a similar lock gate at Lock No. 6, Ohio River. 
Each gate has eighteen valves, intended for use only in case of acci¬ 
dent to the valves in the river wall of the lock. These gate valves 
are butterfly valves with horizontal axes, and are operated by hand by 
means of a lever engaging in a circular gear wheel which operates a 
vertical shaft through a rack. The gate is run into position across 
the lock and back into the gate recess by means of a chain attached 
at each end to an end of the gate and wound around a shaft located 
at the entrance to the gate recess, the shaft being turned through 
gearing by means of an engine of the reversible double-cylinder hori¬ 
zontal type. The lock gate operating machinery is shown on Plate 
XII. To prevent sudden shocks to the gate, each end of the chain 
is attached to one end of a lever, the other end of the lever having a 
spring control, the fulcrum being on the gate between the spring and 
the end of the lever to which the chain is attached. However, if the 
gate should stick fast, due to drift under a wheel or other causes, 
something valuable might be broken and the lock thereby put out of 
commission, so a "weak-link” is used in the chain, the "weak-link” 
consisting of the keeper of the shackle by which attachment of the 
chain to the tug lever is made. A number of these safety "keepers” 
will be kept on hand for use as required. The size of operating chain 
is a result of evolution, it having been learned from experience at 
Davis Island Dam that a 1^-inch chain is satisfactory, chains up to 
1^-inch in size having been broken in moving the gate. The size 
of engine required, and the power needed in the system was deter- 


10 


mined by working back from the strength of the chain. In the first 
gates built for Davis Island Dam the gates slid laterally on the wheels 
when the water pressure came on the gate, this movement breaking 
many wheel flanges. Later, an arrangement was devised to allow the 
entire gate to swing downstream without the wheels or trucks moving; 
this device is illustrated in Plate X. When the gate is subjected to 
water pressure, the wooden bearing strip rests against the sill and 
forms the bottom water seal; when the pressure is removed, the entire 
gate swings back about axes of revolution located as at "A” until the 
hangers are vertical and the connection between sill and bearing strip 
is broken. The distance of motion is about 2 inches. This arrange¬ 
ment allows the gate to be easily moved across the lock and back into 
the gate recess. The water seals at the ends of the gates are formed 
by vertical pipes so hinged as to rotate against the walls when sub¬ 
jected to water pressure. 

As it is occasionally necessary to make various miscellaneous repairs 
to lock gates and to paint the ironwork, the gate recesses should be 
so constructed as to admit of being unwatered with a minimum expendi¬ 
ture for pumping. The recesses at Lock No. 4 gave considerable 
trouble when being unwatered for the purpose of gate construction, 
as no special arrangements had been made to facilitate the unwater¬ 
ing of a gate recess without unwatering the entire lock or the entire 
length of a gate track. A good arrangement for coffering off a gate 
recess consists of two sets of vertical slots in the recess walls near 
the entrance to the recess, and timbers which can be placed horizon¬ 
tally with their ends supported in the slots. If these wooden bulk¬ 
heads are not in themselves sufficiently water-tight, the space between 
them can be filled with ashes, sawdust, or river-bed material. A sump 
should be left in the bottom of the recess, and it should be located 
near the entrance so that a floating pump can be used if desired. It 
was originally believed to be necessary to provide for coffering off the 
entire length of a gate track, and foundation boxes for trestles of 
Poiree needle dams were placed across the lock on both sides of each 
gate track as shown in Plate XIII. These double sets of boxes are 
not now considered essential, as it is believed that if it is necessarv 
to pump out the entire length of a gate track the lock itself can be as 
easily coffered off and pumped out, both gates being inspected, painted, 
etc., at the same time. Of course, means for doing this easily should 
be provided. The cofferdams for Lock No. 4 are of removable steel 
trestles which fit into boxes fastened to the foundation above the 
upper gate track and below the lower gate track, the water seal being 


V 



















































































































































































































































































































































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11 


formed of Poiree needles made of 2 by 12 inch 14-foot hemlock planks 
supported by 6 bv 6 inch waling pieces. Plate XIV shows a section 
of one of these cofferdams. These dams are quite water-tight. When 
Lock No. 4 was unwatered in November, 1906, a 10-inch vertical 
centrifugal pump, running about one-half of the time, kept the lock 
unwatered under a head of 8 feet, although a much larger plant was 
required to first unwater it. However, the dams were not as tight as 
this until after dredged river-bed material had been placed outside of 
them and ashes had been thrown around to stop leaks. In 1907 the 
lock was unwatered by two 10-inch vertical centrifugal pumps and 
easily kept unwatered by one of them. 

A feature of the lock not yet mentioned is the tunnel, 5 feet in 
diameter, which runs from the river wall, under the lock and up into 
the power house. The supply pipes for operating the river-wall valve 
machinery run through this tunnel, as do the pipes which supply com¬ 
pressed air for the bear-trap gates, and two other pipes—one contain- 
ing whes for electric lights on the piers, and the other telephone wires. 

The gate recesses are provided with roofs, composed of I-beams and 
steel cover plates bolted to the upper flanges of the beams as shown in 
Plates II and XI; this style of roof is well adapted to easy removal 
before making any necessary repairs to the gate. The beams and plates 
were cleaned verv carefully with steel scrapers and wire brushes, and 
were then given two coats of dry red lead mixed with linseed oil, and 
later a coat of Detroit Graphite Metal Coating, No. 106, the graphite 
being used to protect the red lead from the action of acids, etc. 

When the lock was first built, the machinery recesses on the river 
wall were covered with protection plates of cast-iron. A great many 
of these have been broken in one way or another, principally during 
rises of the river, and steel plates are now being used to replace the 
broken ones. The steel plates, being less easily injured by blows, 
will probably last much longer if properly protected against rust. 

The filling and emptying valves of the lock are circular cast-iron 
butterfly valves, 5 feet in diameter, mounted on vertical axes of cold- 
rolled steel, each valve being placed in a separate short culvert run¬ 
ning from the lock chamber straight across the river wall. There are 
sixteen filling valves and sixteen emptying valves, all of the former 
being located, of course, above the dam and the latter below it. Each 
valve is operated by a separate little engine, consisting of a cylinder 
of Shelby drawn-steel tubing, 5 inches in diameter and 4 feet long, a 
piston and piston-rod, crosshead and guides, and a connecting rod, 
which is attached at its crank end j to the end to a lever arm which * 


12 


turns the vertical valve shaft. When liquid under pressure is forced 
into one end of the cylinder, the valve is turned in one direction; 
when motion in the other direction is desired, pressure is applied to 
the other side of the piston. Plate XV shows the style of engine used 
and its connection to a vertical shaft. The pressure is obtained from 
a pump, operated by compressed air, located in the operating room of 
the power house; the direction of application of the pressure is con¬ 
trolled by a four-way valve, this valve allowing the liquid on one side 
of the pistons to flow back into a tank as pressure is applied to the 
other sides of the pistons. Of course, there is one four-way valve for 
operating the filling valves and another for the emptying valves. 

Whether or not air pressure or liquid pressure should be used is a 
much discussed question. The writer favors liquid pressure, because 
it is subject to instant control, not having the expansive power of 
compressed air, and also because of the character of the power plant. 
This plant is a duplicate compressed-air plant, the air compressors 
being of the two-stage belt-driven type, connected by Morse chains 
to Westinghouse three-cylinder four-cycle vertical gas engines, opera¬ 
ting on natural gas. Each engine is of 85 brake-horsepower, and each 
compressor is capable of compressing 500 cubic feet of free air per 
minute to a pressure of 100 pounds per square inch. The arrange¬ 
ment of the power-house plant is shown in Plate XVI. There are 
frequently times when the supply of gas is low. If it falls to a point 
which prevents operation of the engines, the supply of compressed air 
will be cut off. In this case, the river-wall machinery, if air-actuated, 
would be completely out of operation. However, if actuated by liquid 
pressure, all that is necessary is to get up steam in a small boiler main¬ 
tained for the purpose and connected to the air-supplv pipe of the 
pressure pump. It might be argued that if the air supply is cut off 
the lock gates can not be operated; but the gate engines can be run 
by steam, and arrangements have been made whereby a steamboat pass¬ 
ing through the lock can herself quickly furnish the steam required; 
in fact, steam has always been used in the lock-gate engines at Davis 
Island Dam. Compressed air is used at the newer locks on account 
of the greater economy resulting from the possibility of grouping the 
power units in one central location, it being possible to transmit air 
pressure to much greater distances than steam pressure with a given 
loss. Compressed air is also wanted for use in assisting in the opera¬ 
tion of the bear traps. In order to allow operation of the river-wall 
valves during cold weather, the liquid used will be oil of the quality 
in use at the locks at Sault Ste. Marie, Mich. Water for cooling 




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Plate XVII. General View of Cofferdam inclosing 276 feet of Navigable Pass, the two Bear Traps, Chanoine Weir, and Abutment 









13 


purposes and for domestic use is obtained by a gravity flow from gal- 
vanized-iron tanks located on a platform just under the roof of the 
power house, the tanks being filled by a Worthington pump located 
in the basement of the power house. The piping has been so installed 
that the use of water for domestic purposes can not interfere with the 
supply of cooling water for the engines and compressors. 

THE DAM. 

/ 

The dam consists of 700 feet of Chanoine navigable pass; two 93-foot 
bear traps; three piers; a Chanoine weir,184 feet long; and an abutment, 
all located as shown in Plates I and XVII, the latter being a general 
photographic view taken from the abutment end of the dam during 
construction. 

NAVIGABLE PASS. 

The sill of the navigable pass is about 1 foot below low water. 

The pass horses are all of the same length and are made of forged 
steel of the shape shown in Plate XVIII. The direct stress to which 
the horse is subjected is very small, and proportions are used which 
indicate in direct tension a factor of safety of about 45; however, it 
is essential for the horse to have sufficient strength to resist bending 
stresses and stresses due to accidental blows from boats, etc., experi¬ 
ence of late having indicated that the size at present used is none too 
large, if large enough. Occasionally a horse is broken from one cause 
or another, but if a few extra ones are on hand a diver can replace the 
broken horse by a new one. This brings up the question: "At what 
time during construction should the movable parts be placed?” 
Under the contract for the 250 feet of the pass first built at Dam No. 4, 
none of the movable parts were placed, and they have had to be put 
in place after the cofferdam had been removed and while the sill was 
from 3 to 6 feet under water and in a stiff current. A diver is used 
to place the journals of the horse axles in the horse boxes and to 
fasten them in place with the quoins provided for that purpose; the 
rest of the work of assembling the'parts is done from the deck of the 
maneuvering boat. The style of horse box used at Dam No. 4 is 
shown in Plate XIX. With this style of box it is necessary for the 
horse to be raised vertically after its axle is shoved under the boxes 
and before the quoins can be placed underneath the axle; this gives 
considerable trouble to the diver. The cost of placing the horses 
under water is greater than the cost of placing them while "in the 


14 


dry,” and the result is not subject to inspection. If possible, the 
movable parts should be assembled in place before flooding the coffer¬ 
dam. 

The pass props are of two different lengths, due to the change from 
a 6-foot to a 9-foot stage. This change was made after a 250-foot 
section of the foundation of the pass had been completed. The hurters 
having been fixed in position, the change of elevation of the crest of 
the dam was obtained bv increasing the length of the hoise, prop and 
wicket, without changing the location of the hurters already placed. 
The new hurters; however, were so located as to give a better slope 
to the props. The props are of forged steel of the shape shown in 
Plate XVIII. The bulge at the lower end of the prop is for the pur¬ 
pose of adding weight to the prop to assist it in seating itself, the 
cross-currents sometimes preventing its proper seating in the hurter; 
the small notch is used to catch the hook used to unseat the prop, if 
it fails to unseat itself, in lowering the dam. The hurter is shown 
in Plate XIX. 

The pass wickets are 17 feet 9/4 inches long by 3 feet 9 inches wide, 
and are placed at distances apart of 4 feet, center to center. This 
leaves a clearance between wickets of about 3 inches, which allows 
of their being raised easily, even when placed or knocked somewhat 
out of proper position. The spaces between the wickets are only 
closed at times of very small discharge in the river, when square 5 by 
5 inch needles are used, the needles being placed diagonally in the 
spaces. Sometimes manure, straw, etc., are used to reduce leakage, 
but this is seldom necessary. 

These wickets are very long, those shown in Plates XVIII and XX 
being, at the time the photograph was taken, the longest in the world. 
Plate XXI shows pass wickets both raised and lowered. Wickets 18 
feet long have been proved to be not too long to be operated satisfac¬ 
torily. The pass wickets are operated from a "maneuvering boat,” 
which is a small derrick boat. In raising the dam, the wickets are 
caught by a hook on the end of a pole, the hook engaging in the 
handle plate at the upstream end of the wicket. A wire line is fast¬ 
ened to the hook and leads to a hoisting engine through a swivel 
snatch block on the bow of the boat (see Plate XXII). The wicket 
is thus pulled up until the prop seats itself in the hurter; the upstream 
end of the wicket is then pushed down till it catches the current and 
seats itself against the sill. In lowering the dam, the top of the 
wicket is pulled slowly upstream until the prop unseats itself and the 
wicket is then allowed to fall back into its horizontal position behind 


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Plate XXI. Section of Navigable Pass adjoining Pier No. 












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Plate XXII. Raising Pass Wickets, Davis Island Dam, Ohio Ri 













Plate XXIV. First 250 feet of Navigable Pass during Construction 
















15 


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the sill. Plate XXII shows the maneuvering boat at Davis Island Dam 
raising the pass wickets. 

To prevent damage to the movable parts of the dam and to the sill, 
the foundation is now built so that boats will be prevented from hit¬ 
ting them. This is effected by building the upstream end of the 
foundation as high as sill level, and by building up the protection 
crib below the dam to the same elevation. The sill and movable parts 
in the first 250-foot section of this dam are, however, not protected 
from such blows. 

The 250-foot section of the pass adjoining the lock was built as 
shown in Plates XXIII, XXIV, and XXV. It was made safe against 
undermining by sheet piles close driven down to rock along the up¬ 
stream edge of the concrete, each pile being a 6 by 12 inch by 8 foot 
timber; protection from scour below the dam was afforded by a species 
of pile-and-stone apron built as shown in the plates. It will be noticed 
that the concrete was covered with a complicated and expensive wooden 
top; at present concrete alone is used. 

In building a dam of this type it is necessary, of course, to build it 
in sections, closing off at any one time only a portion of the water¬ 
way. After one section has been completed a cofferdam is built 
around the location of the section next to be built; this cofferdam 
must cross and be built upon the part of the dam already finished. To 
prevent leakage underneath this part of the new cofferdam, it is neces¬ 
sary that a water-tight bulkhead be built in the foundation of the first 
section of the dam near its outer end. 

At Dam No. 4, when the first section of the dam was built, such a 
bulkhead was constructed. This bulkhead consisted of two parallel 
rows of 2-inch hemlock sheeting, 15 feet apart, driven about 2 feet 
into the gravel underneath the pile-and-stone apron below the dam. 
The sheeting ran from the downstream edge of the concrete to the 
downstream end of the apron. The space between the rows of sheet¬ 
ing was filled, partly with gravel, and partly with stones , so it is said. 
The sheeting was cut off at the general elevation of the top of the 
apron (2 feet below sill level), and it was intended that a box cofferdam 
should be built on top of the bulkhead when the cofferdam for the 
next portion of the pass was built (see Plate XXV). This bulkhead 
as built was not well suited for its purpose, as was learned from the 
great leakage encountered during the construction of the next section 
of the pass. 

The cofferdam for the next section inclosed only the 174 feet of 


16 


navigable pass shown in Plate XX, but to unwater it required the 
following plant: 

One 18-inch Blake direct-acting plunger pump. 

One 10-inch Blake direct-acting plunger pump. 

One 12-inch horizontal centrifugal pump. 

Two 10-inch vertical centrifugal pumps. 

One 10-inch horizontal centrifugal pump. 

To stop the great leakage, holes were drilled into the bulkhead 
underneath the box cofferdam shown in the background of Plate XX, 
and thin grout was poured into the holes under a head created by 
raising the point of supply on a platform about 16 feet above the 
water surface. Of course, the cofferdam was not unwatered while 
this was being done, as otherwise the grout would have been carried 
away by the current. A slight decrease in the amount of leakage was 
produced, and this permitted the cofferdam to be unwatered. There 
still remained a great deal of leakage, and the expenditure for pump¬ 
ing was large. It is of the greatest importance that bulkheads be well 
built and water-tight, and it is now believed that the best way to 
assure this is to make the water seal of concrete and tight sheeting 
driven underneath the concrete as deep as it can well be driven, a pile 
driver being used if possible. 

However, not all of this heavy pumping was due to the poor bulk¬ 
head, as the gravel at Dam No. 4 is of large size and deficient in 
sand, and during all cofferdam work at this location heavy pumping 
was the rule rather than the exception. 

The latest design for the navigable pass foundation is shown in 
Plates XXVI and XXVII. This is the type used for all of the pass 
at Dam No. 4, except the 250-foot section first constructed. In this 
type, security against scour under the dam is given by a row of Wake¬ 
field triple-lap sheet piling made of 3 by 12 inch white oak, and to 
some extent by the stone-filled apron crib which is sunk to a depth of 
7 feet below the bottom of the concrete foundation. Security against 
scour below the dam is due to the deep apron crib and the large rip¬ 
rap placed on the downstream side of the crib. The fact that the 
concrete is placed on piles driven to rock gives additional stability to 
the foundation, and would probably assist it greatly in the event of 
much scour occurring below the dam. The movable parts are pro¬ 
tected from accidental blows when lying down on the foundation. 
The center piece, or tongue, of the Wakefield sheet piles should have 
been made 4 by 12 inches in size, instead of 3 by 12 inches, as much 


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Plate XXV. Completed Foundations of first 250 feet of Navigable Pass. 





























Plate XXVII. Navigable Pass adjoining Pier No. 1 during Construction. 











* 



Plate XXXI. Bear-Trap Gates During Erection. 



















Plate XXXII. Lower Leaf of Bear Trap No. 



















17 


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greater stiffness would have resulted, and the piles would have pene¬ 
trated to neater depths. 


BEAR-TRAP WEIRS. 

The bear traps are of the single two-leaf style, known as the ''old 
bear trap.” This type has been in use in the Pittsburg district for 
many years, the first bear-trap weir in the district having been placed 
in operation at Davis Island Dam in 1889. Both bear traps at Dam 
No. 4 are identically the same except for differences in the founda¬ 
tions rendered necessary by the different sources of water pressure, as 
explained later. The bear-trap sills are both at the same elevation and 
about 3 feet above the sill of the pass. 

The calculations of the principal dimensions of the bear traps for 
Dam No. 4 were made by means of the formulae devised by Capt. H. 

M. Chittenden, Corps of Engineers, and Mr. A. O. Powell, assistant 
engineer. These formulae can be found in the Journal of the Asso¬ 
ciation of Engineering Societies for 1896, Vol. XVI. The gates 
were designed to have a ratio of hydraulic lifting force to downward 
pressure of making of the formula equal to .6. 

Plate XXVIII is a section of a bear trap and its foundation; Plate 

XXIX is a general plan of the piers and the two bear traps; Plate 

XXX is a plan of Pier No. 1. The foundations are of concrete on 
tearing piles driven to rock, a row of Wakefield sheet piling running 
along the entire upstream side of the pier and weir foundations. 
Protection downstream from the piers and weirs is given by stone- 
filled cribs and by large riprap deposited on the downstream side of 
the cribs. Experience has demonstrated the absolute necessity of 
properly protecting the river bed below the bear traps against scour. 
The bear traps are used as regulating weirs to pass rises of the river 
which do not require the lowering of the dam; they also serve as 
drift chutes. The bear traps on the Ohio River have to be used very 
frequently and the resulting swift currents cause scour below the dam 
to a great depth unless proper protection is given. It is intended to 
place below the bear traps at Dam No. 4 a great deal more of heavy 
riprap than is indicated in Plate XXVIII, but most of it will prob¬ 
ably be placed after the cofferdam is removed, and by ’'hired labor.” 

The lower leaf of each bear trap is built entirely of steel. The 
principal part of the framework consists of nineteen girders 5 feet 
apart, center to center, each hinged at one end to a cast-steel ped¬ 
estal, all pedestals being placed accurately in line and anchored to the • 
foundation. Plates XXXI and XXXII are views of the bear-trap 


18 


gates during erection. The girders are connected by five longitudinal 
girts, and are also cross-braced, the object being to obtain rigidity and 
prevent the warping which has occurred in some long gates previously 
constructed. At the upstream end of each girder is a roller whose 
function is to decrease friction, and a hook which engages in a stop 
on the upper leaf and limits the movement of the gate. The lower 
leaf is covered on both upper and lower sides with -Ms-inch steel plates, 
thus forming a set of connected air chambers. To give buoyancy to 
the gate and decrease the hydraulic power necessary to raise it, com¬ 
pressed air is forced into the lower leaf through an air pipe running 
throughout the length of the dam and connecting with the lower leaf 
through three phosphor-bronze flexible joints, bronze being used be¬ 
cause of its rust-resisting properties. The upper leaf of each bear 
trap has I-beam girders, 5 feet apart, center to center, connected by 
structural shapes and sheathed with.oak, this leaf being comparatively 
flexible, and not subject to bending stresses, as in the case of the 
lower leaf. , 

Arrangements to coffer off and unwater each bear trap are needed, 
as it will probably be necessary to paint the gates frequently because 
of the corrosive action of the acid in the water just below Pittburg, 
and other repairs may be necessary. Accordingly, journal boxes for 
Poiree needle dams have been placed on the foundation above the upper 
leaf and below the lower leaf. The Poiree dams above the bear traps 
can be used, if necessary, to obtain an artificial head with which to 
operate the gates. 

The water for operating Bear Trap No. 1 is taken from the pass 
side of Pier No. 1, instead of from the head of the pier or from the 
bear trap side, because in raising the gates it is desirable to have just 
as much pressure underneath them as possible, and the fall around the 
head of the pier is considerable. For the same reason the water to 
operate Bear Trap No. 2 is taken from the weir side of Pier No. 3. 
This is indicated in Plate XXIX. 

The valves used to operate the bear traps are located in the piers 
and are of the hand-operated butterfly type; motion given by a curved 
lever handle being transmitted through gearing to the vertical valve 
shaft. 

CHANOINE WEIR. 

The sill of the Chanoine weir is 5 feet above that of the pass. 
The weir wickets are to be operated from a structural-steel service 
bridge, the bridge being so designed as to permit of its being lowered 


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19 


on to the foundation when the dam is lowered. The bottom axle of 
each trestle rests in journal boxes which permit its rotation, the 
trestles being either lowered or raised one after another. Up to the 
present, all operation of Chanoine wickets with which the writer is 
familiar has been by means of a hand-operated winch. Such a winch 
will be provided for Dam No. 4, for use in emergencies, but we will 
also use a snatch block attached to a movable frame in such a manner 
as to permit of the operation of the wickets by a wire line leading 
through the snatch block to a hoisting engine on the abutment. With 
the large weir wickets at this dam and the high water pressure such 
an arrangement is considered essential. The foundation of the weir 
Is practically the same as that of the latest design of pass except for 
the extra width necessary for a foundation for the service bridge and 
except that its sill is placed 5 feet higher than that of the pass. A 
section of the Chanoine weir is shown in Plate XXXIII. 

ABUTMENT. 

The abutment is of an unusual type bf construction, as shown in 
Plate XXXIV, because of the fact that the dam was located immedi¬ 
ately at the mouth of Logstown Run. It would not have done to 
permit the stream to empty into the river immediately above the dam, 
because of the sediment which would have been deposited on top of 
the movable parts; and it would have been very expensive to change 
its course so as to make it empty into the river below the dam. It 
was therefore decided to build in the abutment an open culvert through 
which the stream would discharge into the river below the dam. Part 
of the main abutment wall was designed as a crib for reasons of econ¬ 
omy and because it was believed that the owner of the adjacent land, 
the Jones & Laughlin Steel Co., would fill in on top of and all around 
the crib within a few years after its completion. 

The abutments of movable dams are not ordinarily subject to danger 
to the extent which would be apprehended in the case of fixed dams, 
since the lift is generally less and the dam is lowered whenever a rise 
comes along. Nevertheless, the abutment should be protected against 
the usual causes of failure. Most of the causes of failure do not 
apply in the case of an abutment founded on rock, and the advantages 
of such a foundation for an abutment can hardly be exaggerated. 

The lock and guide walls at Dam No. 4 were built under contract; 
as also the power house, lock keepers’ houses, lock gates, first 250 
feet of the dam, the remaining portion of the dam, and the bear-trap 
gates; all having been contracted for separately. The power units 


20 


(gas engines and air compressors) were installed under two separate 
contracts. 

The "hired labor” work comprised the following: the construction 
of 174 feet of the navigable pass, the contractors having failed to pro¬ 
perly prosecute the work and the Government having taken charge of 
it; the unwatering of the lock chamber and leveling the paving; refac¬ 
ing and raising the land wall; raising the lower guide wall; installing 
lock-gate engines and valve-operating engines and piping; installing 
piping in tunnel under the lock, and power house piping; erection of 
service bridge; refacing gate recesses; placing gate recess covers, etc. 

Piles were driven with land drivers and floating drivers, and by both 
drop-hammer and steam-hammer machines. I he best work was done 
by the land drivers with steam hammers. In fact, the driving of 
sheet piles with drop hammers was not at all satisfactory, and the 
floating drivers were considerably interfered with by the fluctuations 
of the water surface. 

The concrete used during the past two years has been made of 
Portland cement, washed river sand and washed river gravel; an elevator 
dredge ("sand-digger”) excavating the aggregate from the river bed 
just below the site of the dam, and sand and gravel being towed in 
flats to a derrick with which it was placed in bins above the mixer. 
The mixer used by the principal contractor was a 2-yard Chicago 
Improved Cube Mixer, which made excellent concrete. The 2-vard 
mixer was the largest made of this type, and some parts were con¬ 
stantly breaking. Had the contractor kept on hand a sufficient 
number of spare parts no delay would have resulted. The concrete 
for the part of the dam built underthe last contracts was delivered by 
a Lidgerwood Cableway, and either placed direct by the cableway 
from a bottom-dump bucket or delivered in buckets by the cableway 
to derricks which placed it in position. This last method had to be 
used in placing the concrete in the high and narrow pier forms be¬ 
cause the jump of the cable after the concrete was dumped would 
have caused the bucket to injure the forms or spring them out of 
line. In concrete work done by the method of "hired labor,” a 
Ransome 24-yard mixer, mounted on a flat, was used. 

All of the pumping done at Dam No. 4 by contractors has been done 
with centrifugal pumps of the horizonta 1 type. The Government has 
usedToth the horizontal and vertical types of centrifugal pumps and 
other styles. The horizontal pumps have been located sometimes on 
pump boats and sometimes on pile or crib foundations or on top of 
cofferdams. Where a floating support for the pump is used, it is nec- 


21 


essary to provide a flexible joint in the suction pipe to provide for 
variations in level of the water surface. This flexible joint is usually 
a section of rubber suction-pipe. I he vertical centrifugal pumps are 
believed to be best fitted for any work of this character, except where 
the pumping will be of short duration and where the pumps will have 
to be moved frequently. They are generally placed on high pile founda¬ 
tions and require to be well braced because of the vibrations of the 
horizontal engines to which they are belted. But when they are once 
started they will continue to pump efficiently and without the stop¬ 
pages and vexatious delays due to leaks and loss of priming, which 
occur with pumps of the horizontal type. The centrifugal pumps 
used have- been manufactured by the Morris Machine Works, Bald- 
winsville, N. Y., and by the Van Wie Pump Co., Syracuse, N. Y. 
In unwatering the tunnel under the lock in order to place air pipes, 
etc., the length of suction would have been large for a centrifugal 
pump of the horizontal type, and the well leading down to the tunnel 
was too small to permit a vertical pump to be lowered through it. An 
"Emerson” pump with 4-inch discharge pipe, borrowed from Lieut. 
G. R. Spalding at Dam No. 3, was used with great success, the pump 
itself being suspended by a rope in the well and lowered as the water 
was pumped out. This style of pump requires little or no attention 
and works efficiently and practically without any stoppages. 

The cribs were placed in position in three ways: (1) By dredging 
and sinking the cribs into place. Floors were built in certain pockets 
and riprap thrown into these pockets sank the crib. The floors are 
objectionable because of their not permitting the stone in the floored 
pockets to run out of the crib in case of scour occurring underneath 
the crib; on the other hand, they give increased stability to the crib 
itself. However, care must be taken to floor only a few pockets well 
distributed throughout the length of the crib. The cribs sometimes 
tip over while sinking, and the best method of sinking in deep water 
is to drive a few piles on each side of the floating crib, and support 
the crib from the tops of the piles by lines, then add the stone until 
all lines are taut, and sink the crib gradually into place by putting in 
stone and slackening the ropes slowly, being careful to maintain a 
strain on all the ropes until the crib is on the bottom. Gauge boards 
nailed to the crib at each corner assist in keeping the crib level. After 
unwatering a cofferdam which inclosed 170 feet of crib which had 
been sunk by this method until the top timber was 6 or 7 feet under 
water, it was found that the top of the crib was out of level by only 
about 4 inches. When a crib has settled to the bottom, any inequal- 


22 


{ties of bearing can be removed by hand scrapers, by a diver with a 
pressure hose, by filling the low places with small riprap which will 
settle under the bottom timbers, or by a combination of thesef methods. 

(2) By building the cribs "in the dry” in a cofferdam with the 
water pumped down to the bottom elevation of the crib. This was 
the most satisfactory method, but it required deeper pumping than 
would otherwise h^ve been necessary. 

(3) By pumping down to the lowest elevation required for any 
work other than cribs, and then building the cribs in a few feet of 
water. The addition of timbers to the top of the cribs served to sink 
them, and no stone was necessary until after the crib was on the bottom. 
This method worked very well. 

The style of cofferdam generally used on the Ohio River is shown 
in Plates XVII, XXIV, XXXV, and XXXVI. This is a simple type 
of "box-coffer” and is constructed as follows: 

The horizontal walings and one plank on each side of the cofferdam 
at each end of the walings are joined by iron rods and separated by 
wooden plank separators. This frame is lowered on to the bed of the 
river and settled down as much as possible by striking with mauls on 
the upper end of the individual upright planks. Then 2 by 12 inch 
hemlock planks are driven on each side of the dam to fill in the spaces 
between the planks already in position. These sheeting planks are 
driven by mauls as deep as possible, generally penetrating 1 or 2 feet 
into the bottom. The space between the sides is then filled with 
river-bed material, placed sometimes by a long-handled dipper dredge, 
but generally by an orange-peel dredge of longer reach, the material 
being dredged elsewhere with a dipper dredge and dumped from scows 
within reach of the orange peel. This is the better method, because 
any disturbance of the riverbed just outside a cofferdam is conducive 
to leaks. The dam is then planked on top. As a rule, the only piles 
used are those placed just inside of the dam to assist it in sustaining 
the water pressure, and a cluster (filled around with riprap) placed at 
the outer upstream corner of the cofferdam to assist it in withstanding 
the effects of scour, blows from floating ice, drift, etc. 

The difficulties of construction are almost all due to the variable 
stages of water in the river. At times there is not enough water to 
float a steamboat, and at others the water surface is from 10 to 15 feet 
above the tops of the cofferdams. Situated as near the headwaters of 
the Ohio as is Dam No. 4, the rises come very quickly and with little 
warning. The stages of the river for the past two years are shown in 
the accompanying hydrograph, Plate XXXIX. Although the coffer- 























Plate XXXVII. Cofferdams Flooded, August, 1906. 















t HE NORRIS PETERS CO., WASHINGTON, D. C 


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23 

dams have been built to a height of 12 or 13 feet above sill level of 
the pass (which is the datum of the gauge), the character of the river 
bed is such that when the water in the river is at a stage of 8 feet the 
water level inside of the cofferdam can not ordinarily be kept lower 
than 4 feet below sill level. Since much of the work has to be done 
at a lower elevation than this, an 8-foot stage in the river has been 
assumed as the dividing line between periods when work can be done 
and periods of enforced idleness. This refers, of course, only to the 
work inside of the cofferdams; and efforts are always made to save up 
odd jobs on shore with which to keep the men engaged during rises 
which flood the cofferdams. The condition at Dam No. 4 during an 
ordinary rise is shown in Plate XXXVII. Even if no damage results 
to a cofferdam from a rise, it takes some little time to put the pump¬ 
ing plant again in shape, and to get the coffer again unwatered, even 
after the water has fallen to a stage which permits of the resumption 
of work. 

It had been expected that the lock and dam would be ready for 
operation by August, 1907, but the river conditions this season pre¬ 
vented active work up to the middle of July, and the work will probably 
not be completed until late in the season. 

The cost of the lock and dam complete will be about $1,020,000, 
the cost of parts of the dam being approximately as follows: Chanoine 
Navigable Pass, $275 per foot; Chanoine Weir, $350 per foot; Bear 
Trap Gates, $700 per foot. 

The officers in general charge of the district during the construction 
of Lock and Dam No. 4 have been: 

Maj. W. H. Heuer, Corps of Engineers. 

Maj. W. H. Bixby, Corps of Engineers. 

Capt. W. E. Craighill, Corps of Engineers. 

Maj. W. L. Sibert, Corps of Engineers. 

Maj. G. A. Zinn, Corps of Engineers. 

Maj. H. C. Newcomer, Corps of Engineers. 

The work at Dam No. 4 was in local charge of Mr. William Martin, 
assistant engineer, until March 6, 1905; from March 6, 1905, to April 
30, 1905, it was in local charge of Lieut. A. B. Putnam, Corps of Engi¬ 
neers; since May 1, 1905, it has been in local charge of the writer, 
who will be relieved on about August 10, 1907, by Capt. F. W. 
Altstaetter, Corps of Engineers. 


U. S. Engineer Office, 

Beaver, Pa., August 1, 1907. 


E. N. JOHNSTON, 

1st Lieut., Corps of Engineers. 























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t 








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9 





























ca yy 



NUMBER 29 

OCCASIONAL PAPERS 

ENGINEER SCHOOL 

UNITED STATES ARMY 


RIPARIAN RIGHTS 

NAVIGABLE WATERS IN THE UNITED STATES 


DECISIONS 


Compiled by Mr. Logan McKee, Chief Clerk, U. S, Engineer Office, Cincinnati, Ohio 


Circular No. 13, Office Chief of Engineers 
May 17, 1904, with References in Full 


WASHINGTON BARRACKS, D. C. 

PRESS OF THE ENGINEER SCHOOL 

1908 




/ 




















K > 

> ' y* 


















% 








•« r .. • ' 




,r 





*“#■ 




























.V 






NUMBER 29 

OCCASIONAL PAPERS 

U.S. ENGINEER SCHOOL 

UNITED STATES ARMY 


RIPARIAN RIGHTS 

NAVIGABLE IVATERS IN THE UNITED STATES 


DECISIONS 


Circular No. 13, Office Chief of Engineers 
May 17, 1904, with References in Full 


WASHINGTON BARRACKS, D. C. 
PRESS OF THE ENGINEER SCHOOL 
1908 
















Decisions Relating to Riparian Rights in the 
Navigable Waters of the United States. 


Circular I War Department, 

f Office of the Chief of Engineers, 

No. 13. J Washington, May iy, 1904 . 

The following opinion of the Attorney-General is published for the 
information and guidance of officers of the Corps of Engineers and 
agents of the United States employed under the Engineer Department: 

Department of Justice, 
Washington, D. C., April 5, 1904 . 

The Secretary of War. 

SIR: I have the honor to return herewith a letter addressed to the 
Chief of Engineers, by Capt. Wm. L. Sibert, Corps of Engineers, 
under date of the 21st of February, 1903, together with the blue print 
therein mentioned, relating to the site selected for the rebuilding of 
Lock and Dam No. 2, on the Monongahela River, Pennsylvania, 
which letter and blue print were referred to me by your Department 
on the 25th of said month with a request for an opinion upon the fol¬ 
lowing questions suggested by the Chief of Engineers in an indorse¬ 
ment on said letter, namely: 

"1. Whether the United States can take possession of and utilize 
as a lock site the portion of the bed of the Monongahela River be¬ 
tween high and low water lines, without making compensation to the 
riparian proprietor. 

"2. Whether the establishment by the Secretary of War of the har¬ 
bor line at the locality affects in any way the right of the United States 
to occupy such property.” 

Assuming that the contemplated use of the soil between high and 
low water mark as a lock site is intended for the purpose of improv¬ 
ing the navigation of the river (which is a navigable water of the 
United States), I think the first question should be answered in the 
affirmative. 

Under the law of Pennsylvania the title of a riparian owner, whose 
land is bounded by a navigable river, extends to ordinary low-water 
mark, but such title is not absolute except to ordinary high-water 



2 


mark. As to the intervening space between high and low water mark 
the title is qualified, being subject not only to the public right of 
navigation when covered with water, but to the right of the State to 
use the space for the purpose of improving navigation, and this with¬ 
out compensation. (Stover v. Jack, 60 Pa. State, 339; Tinicum Co. v. 
Carter, 61 Pa. State, 21, 30, 31; Wainwright v. McCullough, 63 Pa. 
State, 66, 74; Zug v. Commonwealth, 70 Pa. State, 138; Philadelphia 
v. Scott, 81 Pa. State, 80, 86; Wall v. Pittsburg Harbor Co., 152 Pa. 
State, 427.) 

And it is held by the Supreme Court of the United States that the 
title and rights of riparian or littoral proprietors in the soil below 
high-water mark in navigable waters are governed by the laws of the 
several States, subject to the rights granted to the United States by the 
Constitution. (Shively v. Bowlby, 152 U. S., 1.) Among the rights 
thus granted is the right to regulate commerce, which includes the 
right to regulate navigation, and therefore to improve navigable waters. 
(South Carolina v. Georgia, 93 U. S., 4.) In the opinion of the 
court in the case of Gibson v. United States (166 U. S., 269) it is 
said: ' f All navigable waters are under the control of the United States 
for the purpose of regulating and improving navigation, and although 
the title to the shore and submerged soil is in the various States and 
individual owners under them, it is always subject to the servitude in 
respect of navigation created in favor of the Federal Government by 
the Constitution.” See, also, the case of Scranton v. Wheeler, 179 
U. S., 141. 


Viewed in the light of the authorities above cited, it appears very 
clear to me that the United States have the right to use the shore be¬ 
low high-water mark as a lock site for the purpose of improving the 
navigation of the river, without thereby incurring liability to the 
riparian owner for compensation for such use. 

As to the second question, in response thereto I beg to state that I 
do not perceive wherein the establishment by the Secretary of War of 
a harbor line at the locality referred to can in any way affect the exer¬ 
cise of the right of the United States to appropriate the soil below 
high-water mark for the improvement of the navigation of the river. 

I am, sir, very respectfully, 


M. D. Purdy, 
Acting Attorney-General. 


By command of Brig. Gen. MACKENZIE: 


Frederic V. Abbot, 
Major , Corps of Engineers. 


STOVER v. JACK * 


1. The definition of low-water mark in Pennsylvania is to be decided 
by the law of that State, and not by that of Great Britain or of the 
sister States. 

2. At common law, those streams only in which the tide ebbs and 
flows are considered navigable. This rule has not been adopted in 
Pennsylvania. 

3. The Commonwealth has not parted with the control of navigable 
rivers nor of the soil beneath. 

4. Grants of the Commonwealth’s lands bordering on navigable 
streams, even when calling for the river as a boundary, do not extend 
beyond low-water mark; nor is the title of the grantee absolute except 
to high-water mark. 

5. The right of passage over the intervening space between high 
and low water mark remains in time of high water in the public. 

6. The Commonwealth may use this space for purposes connected 
with navigation without compensation, and may protect it from un¬ 
authorized use, even by the owner of the land. 

7. Islands in navigable streams belong to the Commonwealth, and 
are excepted from the general laws for the sale and settlement of va¬ 
cant lands; they are granted under laws specially applicable to them¬ 
selves. 

8. ’'Low-water mark” as the limit of a riparian owner’s title is 
the ordinary low-water mark unaffected bv drought. 

9. An island cut off from the mainland in the ordinary stages of low 
water can not be added to the mainland, because in the very dry season 
of the year the stream had almost disappeared, and no water flowed 
over the intervening bed. 

10. An island is a body of land surrounded by water in its flow in an 
ordinary stage, although at some periods of the year the water might 
not pass .—Per Butler , P. J. 

January 19, 1869. Before Thompson, C. J.; Read, Agnew and 
Sharswood, JJ.; Williams, J., at Nisi Prius. 

Error to the Court of Common Pleas of Chester County: No. 18, 
to January Term, 1869. 

This was an action of trespass brought by Owen Stover against 


*This decision is not necessarily applicable in other States. 



4 




Robert Jack. The plaintiff declared for breaking and entering his 
close and carrying away earth and sand. The defendant pleaded ' Not 
guilty.” 

The plaintiff owns a tract of land on the river Schuylkill, in the 
county of Chester, and his deeds call for the line of the land at low- 
water mark on the river. He alleged that the locus in quo was within 
his line. The defendant did not deny the entering and taking the 
sand, nor claim any title to the locus in quo , but alleged that it was an 
island, and that it did not belong to the plaintiff. i here was evi¬ 
dence for the plaintiff that the water of the river in its ordinary stages 
did not flow around the place, but only in floods. The defendant 
gave evidence that the water flowed around it in ordinary stages, the 
passage to it from the mainland never being dry except in time of very 
dry weather. 

The defendant submitted the following points: 

”1. An island is a body of land surrounded by water in its flow in 
an ordinary stage. 

''2. The land having such flow around it would be an island, al¬ 
though at some periods of the year the water might not pass.” 

To which the court (Butler, P. J.) answered: 

''The first point is correct; but it is esteemed unimportant, except 
to the extent it may aid in defining the boundaries of the plaintiff’s 
tract. And this is an answer also to the second point.” 

After referring fully to the evidence on both sides, the court further 
charged: 

''From this evidence on the one side and the other [you will say 
whether the water of the river, when at its ordinary stages unaffected 
by flood or drought , flows around the point from which the sand was 
taken. If it does, then we instruct you that the plaintiff can not re¬ 
cover.] A question has been raised as to the true interpretation of 
the phrase'low-water mark, ’ as employed in the plaintiff’s deed. The 
term 'low-water mark’ is properly applicable only to water affected by 
the tides. And here it means the line described by the water when 
the tide is out; and this without reference to the effects of flood or 
drought. If we take one of our rivers in which tide flows we will 
find 'low-water mark’ whenever the tide is out, and the water at its 
ordinary height. And by analogy the term, when applied to a fresh¬ 
water stream, must be held to mean the line described by the water 
when at its ordinary stages, unaffected either by flood or drought. And 
a different view, such as is urged by the plaintiff, would seem to in- 


5 


terfere with the policy and practice of the State in disposing of lands 
along our great rivers, and what are termed islands within the streams. 
The bed of the river itself has been reserved as a public highway, the 
land being parted with only to its edge, while the islands have been 
disposed of separately. In the months of July, August and September 
there are frequently occasions when many, if not most, of the islands 
in some of these streams (particularly the Schuylkill and Susquehanna) 
may be reached from the shore dry-shod, when the water does not flow 
around them. And the view urged by the plaintiff would bring them 
within the line of low water. 

"We repeat, the terms as used in the plaintiff’s deed and applied to 
the river Schuylkill, refer to the line described by the water of that 
stream, when at its customary or usual flow, unaffected by floods on 
the one hand or drought on the other. (It means low water as con¬ 
tradistinguished from high water; it does not mean the lowest water 
the stream may under special and extraordinary circumstances exhibit.) 
With this interpretation of the phrase used in the deed, you will say 
from the evidence before referred to. and any other you may find in 
the cause bearing upon it, whether the land from which the sand was 
taken is within the line of low-water mark, and therefore embraced 
in the plaintiff’s deed or not. If it is not , he can not, as we have 
before said, recover. If it is, he can and should recover.” 

The verdict was for the defendant. The plaintiff took a writ of 
error, and assigned for error, the answers to the defendant’s points, 
and those parts of the charge included in brackets. 

G. W. Baugh and W. Darlington for plaintiffs in error.—Low- 
water mark is ordinarily used in relation to tidewater and is the 
margin of the water when the tide is out: Storer v. Freeman, 6 Mass., 
439, and where it ebbs the lowest: Sparhawk v. Bullard, 1 Mete., 95; 
Jones v. Janney, 8 W. & S., 443; Hart v. Hill, 1 Whart., 137; Ball v. 
Slack, 2 Id., 539; Lehigh Valley Railroad v. Trone, 4 Casey, 206; 
McCullough v. Wainwright, 2 Harris, 174; Bailey v. Miltenberger, 
7 Casey, 43; Child v. Starr, 4 Hill, 376; Thomas v. Hatch, 3 Sum¬ 
ner, 170; Stenson v. Butler, 4 Blackf., 285; Garner’s Case, 3 Grat¬ 
tan, 655. The edge of the water at an ordinary'stage is not low-water 
mark: Handly v. Anthony, 5 Wheat., 374. 

A. Wanger, for defendant in error, was stopped by the court.—In his 
paper-book he cited Carson v. Blazer, 2 Binn., 475; Johns v. Davisdon, 
4 Harris, 522; Fisher v. Haldeman, 20 Howard, 186; Tarr v. Swan, 
2 Barr, 254; Zimmerman v. Union Canal Co., 1 W. & S., 352; How- 


6 


ard v. Ingersoli, 13 Howard, 424; Ball v. Slack, Hart v. Hill, Storer 
v. Freeman, Handly v. Anthonv, Bailey v. Miltenberger, supra. 

The opinion of the court was delivered, February 4, 1869, by 
Agnew, J.—The deed is not before us, but it seems the title of 
the plaintiff extended to low-water mark, and on this ground he 
claimed the ownership of the locus in quo of the alleged trespass. The 
defendant alleged it to be an island surrounded by water except at very 
low stages. The court held that low water as contradistinguished 
from high water does not mean the lowest water the stream may ex¬ 
hibit under special and extraordinary circumstances; and that the locus 
in quo is an island if the water of the river flows around it at its ordi¬ 
nary stage unaffected by floods or drought. This is assigned for error, 
and it brings up for decision what is meant by low-water mark as a 
terminus or boundary. I have found no case defining low-watermark, 
though many refer to it as fixing boundary of the title on navigable 
streams. Its definition, however, seems to grow out of the principles 
recognized as establishing the character of these streams, and the rights 
of riparian owners. 

The question is one to be decided by the law of this State, and not 
by that of Great Britain, or even some of the sister States. At the 
common law those streams only are considered navigable in which the 
tide ebbs and flows. High or low water mark was therefore easily 
determined, the ocean maintaining a common level, and the ordinary 
flow and ebb of tide being regular in their extent, and marking the 
limits of high and low water with great uniformity. But in this 
State its large navigable streams rise and flow hundreds of miles above 
tide, and are affected by floods and droughts to extremes that surprise 
the unaccustomed eye, sometimes filling the valleys far beyond the 
banks of the stream, and at others shrinking within the pebbly bed 
until a thin thread only marks the flow. The common law, being in¬ 
applicable to the circumstances, has therefore not been adopted. For 
this reason neither the control of the waters of navigable rivers, nor 
of the soil beneath, has been parted with by the Commonwealth; and 
the far-seeing wisdom of our ancestors has been, in this respect, am¬ 
ply vindicated by the* results. This was soon perceived when the 
State began to improve the navigation of her rivers by artificial means. 
Had it been otherwise, many noble works designed to enrich and 
benefit her citizens must have failed in an encounter with private in¬ 
terests. The importance of the rights thus reserved will be seen in 
the following cases—others might be added: Shrunk v. Schuylkill 
Nav. Co., 14 S. & R., 79; Commonwealth v. Fisher, 1 Pa., 462; 


7 


Zimmerman v. Union Canal Co., 1 W. & S., 346; McKeen v. Del. 
Div. Canal Co., 13 Wright, 424. Owing to this right of control and 
title to the soil itself it has always been held that the grants of the 
State of lands bordering on navigable streams, even when calling for 
the river as a boundary, do not extend beyond low-water mark: Hart 
v. Hill, 1 Whart., 137; Ball v. Slack, 2 Whart., 508; Lehigh Valley 
Railroad Co. v. 4 rone, 4 Casey, 206; Jones v. Janney, 8 W. & S., 
436. And even to this extent the grant of title is not absolute, ex¬ 
cept to high-water mark. As to the intervening space between high 
and low water mark, the title of the private owner is qualified. The 
right of passage over it in high water remains in the public. The 
State may use it for purposes connected with the navigation of the 
stream without compensation, and may protect it also from an unau¬ 
thorized use of it even by the owner of the land to low-water mark: 
Shrunk v. Sch. Nav. Co., Commonwealth v. Fisher, Zimmerman v. 
Union Canal Co., ubi supra; Bailey v. Miltenberger, 7 Casey, 43; 
Flanagan v. City of Philadelphia, 6 Wright, 219. Another conse- 
qqence of the Pennsylvania doctrine as to navigable streams is that 
the islands in them belong to the State, and have always been consid¬ 
ered as excepted from the general laws for the sale and settlement of 
the vacant lands of the Commonwealth. They have always been 
granted under laws of special application to islands. It is also a well- 
known fact that in the seasons of extreme low water many of the 
islands of the principal rivers are not entirely surrounded by water, 
but may :e reached from the shore dry-shod. All these considerations 
show that to adopt any other rule than ordinary low-water mark un¬ 
affected by drought as the limit of title would carry the rights of 
riparian owners far beyond boundaries consistent with the interests 
and policy of the State, and would confer title where heretofore none 
has been supposed to exist. No one has ever thought that an island 
cut off from the mainland by the stream in ordinary stages of low 
water could be added to the land of an adjacent proprietor merely be¬ 
cause in the very dry season of the year the stream had almost disap¬ 
peared, and no water flowed over the intervening dry and sandy or 
pebbly bed. The doctrine that low-water mark is the extremest verge 
to which a long drought may reduce the stream would lead to such 
results. Ordinary high water and ordinary low water each has its 
reasonably well-defined marks, so nearly certain that there is not much 
difficulty in ascertaining it. The ordinary rise and fall of the stream 
usually finds nearly the same limits. But to bound title by a mark 
which is set by an extraordinary flood, or an extreme drought, would 


8 


do injustice and contravene the common understanding of the people. 
We are of opinion, therefore, that the plaintiff’s title was bounded by 
ordinary low-water mark, where that was properly submitted to the 
jury. 

Judgment affirmed. 

Pennsylvania State Reports, Vol. 60, pp. 339-344. 



THE TINICUM FISHING CO. v. CARTER * 


1. A fishery is an incorporeal easement on the land of the riparian 
owner, like a way or common. 

2. The right of fishery exists only during the fishing season. 

3. A fishery on the Delaware was within the limits of the port of 
Philadelphia. The riparian owner under a license from the wardens 
built a pier on their land which interrupted the fishery. Held, that 
this was damnum absque injuria and the owners of the fishery could 
not recover from the riparian owner. 

4. The bed and channel of the Delaware ad medium aquae filum 
belong respectively to Pennsylvania and New Jersey. 

5. The title of the riparian owner extends to low-water mark, not 
absolutely in tidal streams, but subject to the public right of passage 
when the tide is high. 

6. The riparian owner has no right to make any erection between 
high and low water mark without express authority from the State. 

7. The State can grant authority to make such erection either to 
the riparian owner or to others so long as the riparian owner is not 
thereby deprived of access to the river and use of it as a public 
highway. 

8. Under this restriction the right of the Commonwealth to make 
any erections in the river for the improvement of its use as a public 
highway or to promote in any way the business and prosperity of the 
people is undoubted and unlimited. 

9. Those who have shore or fishery rights took and hold them sub¬ 
ject to this necessary transcendental power. 

10. The constitutional provision as to compensation for private 
property taken for public use does not apply to mere consequential 
damages. 

11. It is no objection to the license by the State to make erections 
in the river, that it was obtained on application of the owner for his 
advantage to increase the value of his land. 

12. This is always the case in regard to such works whether pro¬ 
jected by individuals or corporations. 

13. An erection thus made by a riparian owner is not part of his 
domain absolutely. Beyond low-water mark the title of the structure 
follows that of the bed on which it is built, and remains in the State 


*This decision is not necessarily applicable in other States. 



10 


subject to the public right of passage and access to the river and be¬ 
tween high and low water. 

14. There is no covenant or duty which the riparian owner owes 
to his grantees not to avail himself of a privilege to make such erec¬ 
tions or to accept such a license from the State. 

15. Independently of the Acts of February 8, 1804, and February 
23, 1809, there is no exclusive right of fishery by the riparian owner 
opposite his shore in any navigable river. 

16. An arm of the sea extends as far into the interior of a country 
as the water of rivers is propelled backward by the tide. 

17. In Pennsylvania there can be no prescription of a several and 
exclusive fishery. 

18. Prescription can not have a legal origin where no grant could 
have been made to support it. 

19. The respective grants to the proprietaries of Pennsylvania and 
New Jersey were to low-water mark, neither ever owned the bed of 
the Delaware River. 

20. The bed of the river and the river itself passed by force of the 
Revolution, etc., to the two States, to be owned and enjoyed on the 
same principle as a navigable river flowing between two conterminous 
nations. 

21. These States may by compact and laws regulate and restrain 
the common right of fishing to any part of the shore. 

22. A person can establish no exclusive right of fishery on the Del¬ 
aware without proving a compliance with the Acts of 1804 and 1809. 

23. A fishing place may be granted separate from the soil. 

24. There may be a grant of an easement in gross personal to the 
grantee, but it can not be assigned or transmitted by descent; nor can 
the owner of the right take another person into company with him. 

25. If the easement consists in a right of profit a prendre , if granted 
to one in gross, it is treated as an estate and may therefore be for life 
or inheritance. 

26. If the right be an easement proper, as a right of wav and is 
granted in gross, it is a mere personal interest and not inheritable. 

27. A right to take fish is a profit a prendre in another’s soil, and 
requires for its use exclusive occupancy during the period of fishing, 
and implies the right to fix stakes, etc., for drawing the seine and the 
occupancy of the bank at high tide as well as the space between high 
and low water mark. 

28. The grantee of a fishery has the exclusive possession during his 


11 


fishing time, and the grantor at all-other times and for all purposes. 

29. Land or an interest in land can not be prescribed for. 

30. A presumption of knowledge and acquiescence of the owner 
that the exercise is under a claim of right, is required in cases of pre¬ 
scription. 

31. It is not a principle without exception that whatever incor¬ 
poreal hereditament may be granted, may also be acquired by long and 
uninterrupted use. 

32. A right claimed by prescription must be such as must reason¬ 
ably be presumed to have been granted, not one whose exercise would 
destroy the usufruct of the grantor’s property. 

January 19, 1869. Before Thompson, C. J.; Read, Agnew and 
Sharswood, JJ. Williams, J., at Nisi Prius. 

Error to the Court of Common Pleas of Delaware County: No. 
106, to January Term, 1869. 

This was an action on the case commenced July 26, 1867, by Paul 
B. Carter against the Tinicum Fishing Company, for disturbing a 
right of fishery on the Delaware River, in Tinicum township, Dela¬ 
ware County, to twelve-fourteenths of which the plaintiff claimed 
that he had title. 

******* 

The opinion of the court was delivered February 15, 1869, by 
Sharswood, J.—The plaintiff below claimed to be the owner of 
twelve-fourteenths of a fishery on the river Delaware. It consisted 
in the right, during the fishing season, to throw out nets from Hart’s 
wharf to Darby Creek, about a mile in extent, and to draw them in 
on the shore. It is an incorporeal easement^on the land of the ripa¬ 
rian owner, like a way or common: Hart v. Hill, 1 Whart., 138. As 
such an easement may arise by express grant, it may possibly be that 
the presumption of the grant may be made from such long-continued, 
open, peaceable and adverse enjoyment as will be sufficient in the 
case of other incorporeal hereditaments. Of this, however, we ex¬ 
press no opinion, as there is one circumstance which makes a marked 
difference between this and other cases. The right only exists dur¬ 
ing the fishing season, and not at any other period. No such point, 
however, seems to have been made below, and on the assumption that 
such a presumption may exist, the plaintiff’s case was submitted to 
the jury, and the verdict was in his favor. We see no error in the 
record, except in the answers of the court to the second and fourth 


12 


points of the defendants, which form the ground of the second assign¬ 
ment of error. 

The injury complained of arose from an obstruction caused by a 
wharf or pier extended and built by the defendants below into the bed 
of the river, by a license or authority derived from the board of war¬ 
dens of the port of Philadelphia, under the thirteenth section of the 
Act of March 29, 1803, 4 Sm. Laws, 70, entitled "An act to estab¬ 
lish a board of wardens for the port of Philadelphia, and for the reg¬ 
ulation of pilots and pilotage and for other purposes.” One great 
object of this law was, under suitable regulations, to improve the 
navigation of the river, or, perhaps, rather to make its navigability 
available for business purposes by the building of wharves and the 
creation of docks, so that vessels could safely and conveniently load 
and unload. For this purpose the board is empowered to grant 
licenses to the owners of land fronting on the river to extend wharves 
and piers into the bed and channel, so, however, as not to injure the 
navigation. 

The bed and channel of the Delaware River ad medium aquae filum 
belong respectively to the States of New Jersey and Pennsylvania. 
The grants both to the proprietaries of the former and to William 
Penn, were bounded on each side by the river: Bennett v. Boggs, 
Baldw., 72. The bed and channel remained in the British crown, 
but by the Revolution and the acknowledgment of the independence 
of the colonies by the treaty of peace, all the rights and sovereignty 
of the crown were transferred to and vested in the several States. The 
Delaware being a navigable co-terminous stream between New Jersey 
and Pennsylvania, the title of each to the bed extended from their re¬ 
spective shores to the middle of the river, according to the well-estab¬ 
lished principle of universal public law: Vattel, §266. The title of 
the riparian owner, derived by grant from the State, extends to low- 
water mark, not absolutely indeed in tidal streams, but subject to the 
public right of passage when the tide is high: Ball v. Slack, 2 
Whart., 508. He has no right to make any erection, between high 
and low water, without express authority from the State; nor, of 
course, beyond low-water mark into the bed and channel. 

The State can grant authority to make such erection, either to the 
riparian owner or to others, so long as the riparian owner is not 
thereby deprived of access to and use of the river as a public high¬ 
way, which Is implied, if not expressed, in the grant to him of land 
bounded on the stream. Under this first and necessary restriction, 
the right of the Commonwealth to make any erections in the river 


13 


for the improvement of its use as a public highway, or to promote in 
any way the business and prosperity of the people, >s undoubted and 
unlimited. Those who have shore or fishery rights took originally 
and still hold subject to this necessary transcendental power. Nor 
does the constitutional provision that compensation shall be made to 
the owner of property taken for public use apply to cases of mere con¬ 
sequential damages: Monongahela Navigation Co. v. Coons, 6 W. & 
S., 101, and cases which have followed in its wake. As the State, 
therefore, might itself have erected or caused to be erected the wharf 
and pier built by the defendants below, without any responsibility to 
the* plaintiff for any consequential damages to his easement, or right 
of drawing his seine on the shore, so neither is the grantee or licensee 
of the State liable for such damage. As to him it is damnum absque 
injuria. His right of fishing, just as the right of the riparian owner 
himself to fish on his own land, was subject to the higher right of 
the Commonwealth for the public good, and if impaired or destroyed 
by the power of the sovereign, whether under general or special laws, 
he has no ground of action. It was an original implied condition 
of his grant if he or those under whom he claims ever had one, and 
his title by long use can rise no higher than its presumed source. 

It is no objection that the license is obtained on the application of 
the owner for his private advantage, to increase the value of his land. 
Such is always the case in regard to such works, whether projected 
by individuals or incorporated companies. Their object maybe profit 
to themselves, but that of the State is the public good. Thus the 
powers granted to Josiah White, George F. A. Hauto and Erskine 
Hazard, to improve the river Lehigh by the Act of March 20, 1818, 
Pamph. L., 197, or to the Schuylkill Navigation Company, and 
many other corporations of a similar character, may have been so¬ 
licited with a view to large gains or dividends, but such motives in 
the grantees in no way changed the character of the grant from a pub¬ 
lic to one of a private nature. 

A more plausible objection is that the riparian owner, by applying 
for and obtaining a license to extend a wharf in front of his land, 
can not thereby derogate from his own grant before made by him or 
those under whom he claims. But the wharf thus built is not thereby 
made part of his domain, does not become his property absolutely; be¬ 
yond low-water mark the title to the structure followed that of the 
bed on which it was built and remained in the State, subject to the 
public right of passage and access to the river, and between high and 
low water mark; though the title to the soil remains in the riparian 


14 


owner it is subject to the public right of passage over it as before. 
Since writing this opinion I have been referred to the third section 
of the Act of April 3, 1868, Pamph. L., 765, which enacts that the 
wharves thus erected shall be the property of the party licensed to 
erect them; but that, of course, does not affect, but rather confirms 
the positions taken. In building the wharf he is in fact the mere 
agent of the State. There is no privity therefore as to the subject- 
matter between the owner of the shore and his grantees, or the gran¬ 
tees of those under whom he claims. There is no covenant or duty 
which he owes to them, not to avail himself of such a privilege or 
accept such a license from the State. Public policy strongly supports 
the view we have thus adopted. Perhaps a more striking illustration 
could not be presented than that which appears on this record. It is 
a claim of a right to draw the seine for a few weeks in the spring of 
the year, during the season of shad fishing, over an extent of river 
front of 1 mile, the existence of which effectually precludes all im¬ 
provements. Unless such paramount right exists in the Common¬ 
wealth, the extension of the accommodations of the harbor to meet 
the demands of the foreign and coasting trade, and the erections 
which the commerce of the whole port imperatively requires, might 
come to depend upon the will of one man, owning one-fourteenth of 
such an easement. 

Judgment reversed, and a venire facias de novo awarded. 

61 Pennsylvania State Reports, pp. 21-23, 29-32. 


WAINWRIGHT v. MCCULLOUGH * 


L The Allegheny, Monongahela, and Ohio rivers are rivers nat¬ 
urally navigable, and have been classed with the Delaware and Sus¬ 
quehanna. 

2. The title of a riparian owner on the Allegheny (it being a navi¬ 
gable stream), since the reservation of islands under the Act of 1785, 
would not include an island opposite his land, but would extend only 
to ordinary low-water mark on his own side. 

3. Between high and low water mark the title of the riparian 
owner is qualified, being subject to the right of navigation over it 
and improvement of the stream as a highway. 

4. Between high and low water mark, the riparian owner can not 
occupy to the prejudice of navigation, nor place obstructions on the 
shore without express authority from the State. 

5. The Act of April 16, 1858, "to establish high and low water 
lines in the Allegheny," etc., is not applicable to disputed bound¬ 
aries between private owners, but for regulating the respective rights 
of the public and land owners over whose property the right of navi¬ 
gation extends between high and low water marks. 

6. The wrongful diversion of the waters of a navigable river from 
its bed does not extinguish the title of the State nor add to that of 
individuals. 

November 1, 1869. Before Thompson, C. J.; Read, Agnew, 
Sharswood and Williams, JJ. 

Error to the District Court of Allegheny County: No. 98, to Octo¬ 
ber and November Term, 1868. 

This was an action of ejectment, commenced September 16, 1867, 
by Zachariah Wainwright against Michael McCullough, for "a piece 
of land in the borough of Lawrenceville, Allegheny County, bounded 
on the southwesterly side by the land of the defendant, formerly of 
Mrs. Elizabeth F. Denny, on the southeastwardly side by the north¬ 
westwardly low-water line (the low-water line next Wainwright’s, 
formerly Cork’s Island) purporting to have been fixed by commission¬ 
ers appointed under an Act of Assembly, passed the 16th day of April, 
1858, entitled 'An Act to establish high and low water lines in the 


* This decision is not necessarily applicable in other States. 



16 


Allegheny, Monongahela, and Ohio rivers, in the vicinity of Pitts¬ 
burg, Allegheny County,’ the said low-water line beginning at the 
westwardly line of said piece of land, runs thence, &c.; on the north¬ 
eastwardly side by Allen street as the same is claimed to be continued 
in said borough, and on the northwestwardly side by the top of the 
southeastwardly bank of Wainwright’s, formerly Cork’s Island, afore¬ 
said.” 

* * * * * * * 

The opinion of the court was delivered, January 3, 1870, by Agnew, 
J.—This cause comes before us upon a single but important question. 
The court below ruled the case upon the effect of the low and high 
water lines as established by commissioners under Act of 16th April, 
1858, Pamph. L., 326, which excluded the plaintiff from the land 
described in his writ, and prevented his recovery. In order to arrive 
at the legal effect of the lines established by the commissioners under 
that act, we must ascertain its true purpose; and to reach this, it be¬ 
comes necessary to examine the navigable character of the rivers Alle¬ 
gheny, Monongahela, and Ohio, and the rights of the riparian pro¬ 
prietors upon their banks. These rivers are among the largest in the 
State; larger than the Schuylkill and Lehigh, recognized as navigable 
in the early history of the province, and have been repeatedly held by 
name to be rivers naturally navigable, and therefore classed with the 
Delaware and Susquehanna: Carson v. Blazer, 2 Binney, 478; Shrunk 
v. Schuylkill Nav. Co., 14 S. & R., 79, 80; Hunter v. Howard, 10 
Id., 244. Many acts have been passed declaring tributaries of these 
rivers navigable. But an act perhaps most pertinent to this contro¬ 
versy is that of 8th April, 1785, 2 Sm. Laws, 317, regulating the tak¬ 
ing up of lands within the new purchase, of which the thirteenth 
section expressly excepts islands in the Ohio, Allegheny , and Delaware. 
The exception bears directly on the claim of title by the plaintiff to 
the middle of the stream, under the patent of Conrad Winebiddle, 
dated December 31, 1787. 

Wainwright’s Island, involved in this controversy, lies on the east¬ 
ward side of the middle thread of the stream, and separated from the 
eastern shore by a small branch, so that the plaintiff’s title to the 
middle of the stream, if allowed, would embrace the island. But the 
reservation of the islands by the Act of 1785, passed before the incep¬ 
tion of the Winebiddle title, recognizes the navigable character of 
the Allegheny, and the title can extend only to ordinary low-water 
mark on the eastern shore of the river. 

This being the navigable character of the stream, the rights of the 


17 


riparian owners are settled by numerous decisions, a few of which 
may be referred to: Carson v. Blazer, supra; Shrunk v. Schuylkill 
Nav. Co., supra; Ball v. Slack, 2 Whart., 508; Zi mmerman v. Union 
Canal Co., 1 W. & S., 346; Bailey v. Miltenberger, 7 Casey, 37; 
McKeen v. Delaware Div. Canal Co., 13 Wright, 424; Tinicum 
Fishing Co. v. Carter, 11 P. F. Smith, 21, opinion by Sharswood, J., 
decided last winter at Philadelphia. From these and other cases, it 
will appear that the absolute title of the riparian proprietor extends 
to high-water mark only, and that between ordinary high and ordi¬ 
nary low-water mark, his title to the soil is qualified, it being sub¬ 
ject to the public rights of navigation over it, and of improvement of 
the stream as a highway. He can not occupy to the prejudice of 
navigation or cause obstructions to be placed upon the shore between 
these lines, without express authority of the State. 

The case of Bailey v. Miltenberger,7 Casey, 37, decided in 1856, 
doubtless had something to do in turning public attention to the shores 
of the streams surrounding the city of Pittsburg, which led to the 
passage of the Act of 1858, for the purpose of defining the low and 
high water lines. It referred to the mistaken idea entertained by 
some proprietors of making ground for their mills, by depositing cin¬ 
ders on the shore between low and high water marks. "The Alle¬ 
gheny and many other navigable rivers” (says the opinion) "do not, 
at the time of low water, occupy over one-third of their bed; and it 
will be most disastrous to allow every owner to fill out his land to 
low-watermark.” This state of affairs, for these rivers had been 
seriously encroached upon at and opposite Pittsburg, no doubt led to 
the Act of 16th April, 1858, Pamph. L., 326. It begins by a recital, 
"Whereas, The lines of lands on and along the shores at the rivers at 
and near the city of Pittsburg, in the county of Allegheny, have never 
vet been clearly ascertained, and as it is important to the owners of 
such lands, the persons navigating the waters of, and the corporations 
adjacent to, such rivers, and to all parties interested, to know and to 
have their several rights and privileges in extension and limitation 
ascertained and defined; therefore,” etc. The first impression aris¬ 
ing from this language might seem to be that the law was intended 
to ascertain and fix these high and low water lines to end all contro¬ 
versies, private as well as public. But a careful consideration of its 
purpose and provisions shows that it is not applicable to disputed 
boundaries between private owners, but was intended to regulate the 
respective rights of the public and the landowners, over whose prop¬ 
erty the right of navigation extends between high and low water lines. 


18 


The subject itself is incompatible with a regulation of boundaries 
between landowners, for the bed of the stream belongs to the State, 
and necessarily lies between and excludes controversy with an oppo¬ 
site owner, while the act itself refers to no other lines than those of 
low and high water. It exhibits no purpose to define boundaries be¬ 
tween private owners running in towards the stream. The boundary 
adjusted is therefore necessarily between the State and the riparian 
owner, for low and high water lines on a navigable river can concern 
no other owners. This accords with the parties enumerated in the 
preamble, to-wit—the owners of the lands, the persons navigating 
the waters, and the corporations adjacent—that is, the cities and 
boroughs which regulate the landings and ways to and from the rivers. 
The second and third parties exercise the rights of the public, and 
therefore are deeply interested in the establishment of the lines of 
low and high water, but can have no interest in a dispute about 
boundaries between individuals. 

Coming to the duties of the commissioners as set forth in the second 
section, the law says: "Such lines of low and high water to be laid 
out along said shores aforesaid in such manner and position as will 
most perfectly secure and perpetuate the navigable channels of said 
rivers, and best promote the safety and convenience of vessels, rafts, 
and persons navigating the same, and as will be most suitable in all 
respects for the general benefit of the public at large." In the third 
section they are required not only to hear the parties interested, but 
to examine experienced hydraulic civil engineers, scientific men and 
others for the purpose of obtaining accurate information in re¬ 
gard to flowing water in navigable streams, and in regard to the 
location of the lines aforesaid. Evidently the parties interested are 
the private owners of the lands extending to the river on the one 
hand and the parties navigating and corporations adjacent to the river 
on the other, while the mere ascertainment of the actual position of 
a private boundary between owners is inconsistent with the discretion 
required -by the act to be exercised in locating the high and low water 
lines, so as to preserve the channels of navigation, and promote the 
safety and convenience of vessels, rafts, and persons navigating the 
same, and for this purpose to call in the aid of scientific men. The 
effect of the lines as established is thus stated: "the lines so approved 
shall forever after be deemed, adjudged and taken, firm and stable for 
the purposes aforesaid." If we seek for the "aforesaid" purposes, 
the act discloses none but those relating to the public interest and 
that of the riparian owner. Then if we advert to the power of the 


19 


State over navigable streams, as stated in the authorities cited, we 
discover that it is plenary over the subject of navigation and the im¬ 
provement of these natural channels of commerce, while the owner¬ 
ship of the riparian proprietor is qualified between the lines of low 
and high water. The legislature may, therefore, with great propriety 
define the bounds of high and low water, by means of a suitable com¬ 
mission, for the purpose of regulating the public right, so as not to 
conflict with private interests, and to prevent private rights from be¬ 
ing exercised to the prejudice of public interests; for example, to pre¬ 
vent the shores from being filled up with great banks of cinders. But 
if the intent were to regulate disputed boundaries between private 
owners, what machinery compatible with the lawful determination 
of private rights has the legislature provided? No right of appeal is 
given as in the case of party walls and partition fences. And the pri¬ 
vate right would be determined by commissioners in derogation of the 
right of trial by jury. Now, without determining whether this is 
constitutional or not, it is a circumstance against the interpretation 
of the act in that way. In the case of Wells v. Fox, 1 Dali., 308, 
we have some analogy to the present question. There it was deter¬ 
mined that the feigned issue to be ordered on an appeal from the de¬ 
termination of the regulators of party walls, could determine only 
whether the regulators had acted correctly or not, but not the title. 
For the latter purpose an ejectment was considered the proper remedy. 
For these reasons we are of opinion that the commission under the 
Act of 1858 settled no disputes, and ascertained no boundaries, as be¬ 
tween private owners. The effect of this conclusion would be to re¬ 
verse the judgment of the court below, but for another difficulty which 
meets the plaintiff below on the very threshold of his case. By his 
own showing he had no title to the land described in his ejectment. 
The writ describes the land claimed by the plaintiff as lying between 
the low-water line of the island as fixed by the commissioners and the 
top of the island bank. The land thus described, therefore, is a part 
of the island and lies westward of the channel or branch which runs 
between it and the mainland. The title of the plaintiff given in 
evidence was under the Winebiddle patent for the mainland lying on 
the eastern bank of this branch. Thus the channel of the branch 
which belonged to neither the owner of the mainland nor the owner 
of the island, but was the property of the State, intervened between 
the land owned by the plaintiff and the shore of the island for which 
he brought his suit, and effectually cuts off his recovery. 

According to the plaintiff’s own showing, this was no case of mere 


20 


alluvion, or of a river forsaking its bed from ordinary and natural 
causes. He gave evidence to show, and indeed proved, by many wit¬ 
nesses, that the old channel ran next to the island, and began to fill 
up after the defendant had built his dam from the island to Denny’s 
land on the main shore; that the process of filling was accelerated by 
the abutment built by the defendant above the dam, and was finally 
consummated by the bridges built across from the mainland to the 
island. 

^From what has been said of the Allegheny as a river naturally navi¬ 
gable, recognized by statute law and judicial decisions, it is clear that 
the ownership of its bed between islands and the shore, as well as its 
main channel, belongs to the State. A wrongful diversion of its 
waters from its bed does not extinguish the title of the State, or add 
to that of individuals. This is evident upon principle, and finds an 
analogy in the decision in Allegheny City v. Reed, 12 Harris, 39, 
holding that after Smoky or Killbuck Island had been swept away by 
the floods, leaving only a bare sand and gravel bottom, it was the 
property of the State, and not liable to appropriation as an island. 

Having shown no title whatever to the land described in the writ 
of ejectment, the plaintiff’s case is at an end. And for this reason 
the bills of exception to the rejection of certain evidence relating to 
acts of the defendant, his conviction and sentence, the former action 
of trespass, etc., become immaterial. The plaintiff must recover on 
the strength of his own title alone. 

The judgment is therefore affirmed. 

63 Pennsylvania State Reports, pp. 66, 73-77. 


ZUG ET AL v. COMMONWEALTH * 

1. Under an Act of Assembly, commissioneis marked high and low 
water lines on the Allegheny, at Pittsburg. Zug erected buildings 
and cast cinders, etc., into the river between these lines. On an in¬ 
dictment at common law against Zug, the jury by special verdict 
found that the buildings, cinders, etc., did '’not interfere with the 
navigation of the river at any stage of water.” Held, thrft he was 
not guilty of nuisance. 

2. Between high and low water the owner of the soil may use the 
river for his private purposes if he do not interfere with the rights of 
the public. 

3. Wainwright v. McCullough, 13 P. F. Smith, 66, distinguished. 

November 10, 1871. Before Thompson, C. J.; Read, Agnew, 
Sharswood and Williams, JJ. 

Error to the Court of Quarter Sessions of Allegheny County: Of 
October and November Term, 1871, No. 57. 

Christopher Zug and Charles Zug were indicted in the Court of 
Quarter Sessions of Allegheny County for nuisance. The first count 
charged that they had cast into the Allegheny River, "an ancient and 
common highway, large quantities of cinders, slag and rubbish, * * * 
by means whereof the navigation and free passage” along the river 
"has been and is greatly obstructed, so that the citizens of the Com¬ 
monwealth navigating,” etc., can not pass and repass.in so free a 
manner as they ought and had been used to before the obstructions, 
"to the great damage and common nuisance of all the citizens of 
the Commonwealth navigating, to the great obstruction of trade. &c., 
upon said river and against the peace and dignity of the Common¬ 
wealth,” etc. 

The second count charged that the defendants "unlawfully, See., 
did build, erect, See., in the said river,” etc., certain frame buidings 
and with "force and arms” maintained and continued the buildings, 
and that the navigation of the river became thereby obstructed, etc., 
so that the citizens of the Commonwealth could not navigate, etc., 
the rivers so freely and uninterruptedly as they had the right and used 
to do, to the great damage, etc., concluding as the first count. 

The defendants pleaded "not guilty.” 


*This decision is not necessarily applicable in other States. 



22 


The jury by a special verdict found that "the defendants were the 
owners and in possession of a lot or parcel of land, situate in the city 
of Pittsburg, in the county of Allegheny, and bounded by Twelfth, 
Etna and Thirteenth streets and the Allegheny River, on which is 
erected a rolling-mill, &c.; that on the 16th day of April, 1858, the 
legislature passed 'An Act to establish high and low water lines in 
the Allegheny, Monongahela, and Ohio rivers, in the vicinity of Pitts¬ 
burg, in Allegheny County, ’ which act is made part hereof; that in pur¬ 
suance of said act, the District Court of Allegheny County made a final 
decree, establishing said lines; the record of said proceedings and the 
diagrams therein are made part of this verdict; that the defendants 
have maintained and used, in connection with their said rolling-mill, 
certain buildings, erected between the high and low water lines es¬ 
tablished as aforesaid, to-wit: One iron-clad stable, a frame shed for 
storing brick and clay, and a covered building of a height of about 35 
feet, and used in connection with a coal railway for supplying coal to 
said rolling-mill, said buidings being connected together, and com¬ 
mencing— feet from high-water line, and extending at their greatest 
breadth towards low-water line 45 feet, and at their least breadth 25 
feet towards said low-water line from said point of beginning, and 
their total length measuring along the river 223 feet; that outside of 
said buidings, and next to the river, there is a piece of ground from 
10 to 12 feet in width, used by defendants as a cartway, the descent 
on the ground from high-water line to the outside of said cartway 
is not more than 2 feet; from the outside of said cartway to 
the river the descent is abrupt; that defendants have, from time to 
time, placed cinders and slag from their said mill upon their said 
land, between the said high and low water lines, part of which they 
removed; but defendants’ said deposits of cinders and slag have been 
and are below grade fixed by the city of Pittsburg for Tenth and 
Twelfth streets, which terminate in the Allegheny River, and if a 
grade should be established at the defendants’ property like that at 
Tenth street, it would require considerable filling up yet; that the 
aforesaid buildings, so erected and maintained bv defendants between 
low and high water lines, and the cinders and slag so deposited by 
them between said lines, have not and do not interfere with the navi¬ 
gation of said river at anv stage of water.” 

On this verdict the court (Stowe, J.) entered a judgment of guilty, and 
sentenced the defendants to pay a fine of $5 and the costs of prosecution. 
The Act of 1858 recites: 

"Whereas, the lines of lands on and along the shores of the rivers 


23 


at and near the city of Pittsburg, in the county of Allegheny, have 
never yet been clearly ascertained, and as it is important to the own¬ 
ers of such lands, the persons navigating the waters of, and the cor¬ 
porations adjacent to such rivers, and to all parties interested, to 
know and have their several rights and privileges in extension and 
limitation ascertained and defined.” 

It requires the District Court of Allegheny County to appoint three 
commissioners to examine the shores of Allegheny, Monongahela, and 
Ohio rivers, and mark the lines of ordinary low and high water along 
those rivers, such lines "to be laid out along said shores in such man¬ 
ner and position as will most perfectly secure and perpetuate the navi¬ 
gable channel of said rivers and best promote the safety and conveni¬ 
ence of vessels, &c., navigating the same, and as will be most suitable 
in all respects for the general benefit of the public at large.” 

The commissioners were required to make a correct map of their 
work and return it to the District Court, and when approved by the 
court, it should be recorded and the lines "shall forever after be 
deemed, adjudged and taken firm and stable for the purposes aforesaid. ’ ’ 

Entering the judgment of guilty was assigned for error by the de¬ 
fendants, on removing the record to the Supreme Court by writ of 
error. 

M. W. Acheson and T. M. Marshall, for plaintiffs in error.—The 
obstruction of the navigation is what is the subject of an indictment: 
Angell on Water Courses, section 55. 562; Whart. Am. Crim. Law, 
section 2408. Between the natural high and low water mark the 
riparian proprietor is the absolute owner of the soil subject to 
right of navigation: Railroad Co. v. Trone, 4 Casey, 206; 3 Kent, 
562, 563, 571; Naglee V. Ingersoll, 7 Barr, 201; Frankford v. Lennig, 
1 Am. Law Reg., 357; Arnold v. Mundy, 1 Halstead, 1; Dutton v. 
Strong, 1 Black, 31; Angell on Tide Water, 196. 

W. B. Rodgers and R. Woods, for Commonwealth, defendant in 
error.—The absolute ownership of land on navigable rivers extends 
only to high-water mark: Bailey v. Miltenberger, 7 Casey, 37; The 
Commonwealth v. Fisher, 1 Pa. R., 462; Wood v. Appal, 13 P. F. 
Smith, 210; Wainwright v. McCullough, Id., 66; Tinicum Co. v. 
Carter, 11 Id., 21. Actual observation was not necessary to justify 
the judgment: Resp. v. Caldwell, 1 Dallas, 150. 

The opinion of the court was delivered, November 20, 1871, by 
Agnew, J.—If this case was intended to test the right of a party to 
obstruct navigation between high and low water lines, by means of 


24 


buildings or deposits upon the shore, its selection has been inappro¬ 
priate, as the facts found in the special verdict tend to negative the 
existence of any obstruction. The verdict makes the diagram filed by 
the commissioners under the Act of 16th April, 1858, to establish high 
and low water lines in the Allegheny, Monongahela and Ohio rivers, 
a part of the finding. By that diagram it distinctly appears, that the 
land upon which the Messrs. Zug erected their buildings and laid out 
their outside cartway lies upon the natural bank. The verdict finds 
that the descent of this ground, from the high-water line marked by 
the commissioners to the outside of the cartway, is not more than 
2 feet, and that from the outside of the cartway towards the river the 
descent is abrupt. It is manifest from the findings that the erections 
are not on the shore. The verdict also finds that the deposit of cin¬ 
ders and slag between the high and low water lines is not up to the 
grade of the streets of the city terminating in the river, while it fails 
to find that these deposits were made upon the natural shore. The 
finding then concludes with this controlling fact, to-wit: "that the 
aforesaid buildings so erected and maintained by defendants, between 
high and low water lines, and the cinders and slag so deposited by 
them between said lines, have not and do not interfere with the navi¬ 
gation of said river at any stage of water." 

The effect of all the conclusions of fact clearly is, that the erec¬ 
tions and deposits complained of in the indictment, are not obstruc¬ 
tions to the navigation. The learned judge who pronounced the 
sentence evidently founded his judgment on the fact that these erec¬ 
tions and deposits were obstructions to the navigation, and possibly 
the verdict may not have followed the evidence closely. But be this 
at it may, we. can infer nothing contrary to the finding of the jury, 
and if the facts thus found do not constitute a nuisance we must give 
judgment accordingly. Failing to find that the obstructions set forth 
in the indictment (which is at common law) occupy the shore of the 
river, and finding that they are not obstructions to navigation at any 
stage of water, the verdict leaves nothing for the law to adjudge to 
be a nuisance. Non constat that these erections and deposits are not 
placed where they may lawfully be, while it does appear affirmatively 
they are not injurious to the rights of the public. 

This is not the case of an ordinary highway, upon which it is un¬ 
lawful to build; but of a species of property which the owner may 
use for private purposes, provided his use do not interfere with the 
rights of the public. The rights of an owner between high and low 
water marks differ essentially from those of an owner of the soil over 


25 


which a public highway passes. There is no highway for travel on 
foot, by horse or carriage, along the shore of a navigable stream, by 
force merely of the public right of navigation. A stream, at high or 
low water stage, is a highway for boats or other craft; and as to these 
the verdict strips the alleged obstruction of any illegal character. The 
operation and effect of the proceedings under the Act of 1858 are not 
fairly raised in this case= Had the buildings and deposits been found 
to be injurious to, and to interfere with the right of navigation, per¬ 
haps a different question might have arisen, upon which, however, we 
express no opinion. The case of Wainwright v. McCullough, 13 P. 
F. Smith, 66, referred to by the learned judge below, does not touch 
this. It merely decided that the low and high water lines of the com¬ 
missioners did not establish boundaries between individuals; either 
those running towards the river or those lying on the opposite sides of 
a channel of the river constituting a part of the public domain. They 
were intended to regulate the rights of public in respect to navigation, 
and to prevent private rights from being exercised to the prejudice 
of the public interests. When a case shall arise, directly involving 
the effect to be given to the high and low water lines of the commis¬ 
sioners, we must decide it; but now we can only say that this case 
does not call for any opinion on that question. 

Upon the facts set forth in the special verdict we must reverse the 
judgment of the Court of Quarter Sessions, and give judgment there¬ 
upon for the defendants; and order that they may depart from the 
court without day. 

Pennsylvania State Reports, Vol. 70, pp. 138-142. 



PHILADELPHIA v. SCOTT* 

1. Police powers may reach to the destruction of property to pre¬ 
vent the spread of a conflagration; or to the removal, at the expense 
of the owner, of a nuisance tending to breed disease; in either case 
compensation is not a condition of the exercise of the power. 

2. The exercise of the police power is generally based on disaster, 
fault, or inevitable necessity. 

3. The power of eminent domain is conditioned generally on com¬ 
pensation to the owner and is founded in public utility. 

4. The owner of land on an inland tide-water river has an ab¬ 
solute title to the soil to the high-water line qualified to the low- 
water line by the public right of navigation. 

5. Such owner can not use the soil between these lines to the prej¬ 
udice of public right, and the State can improve the intermediate 
space for public use without compensation to him. 

6. No duty lies on the owner of flat or cripple lands lying between 
high and low water lines to shut out the stream or to exclude the 
natural flow of the river by banks. 

7. The State, from its right to protect navigation, can bank out 
the water without compensation to the owner; but can not improve 
at his expense. 

8. TKe private interests of other owners of similar lands can not be 
made a ground for banking at his expense. 

9. Where the State under her sovereign authority has at her own 
expense banked out the water and left the owner in possession of the 
improvement, the duty of repair falls on him. 

10. The Act of March 25, 1848, to provide for the repairs of 
meadow banks on the Delaware front, etc., was to compel the repairs 
of existing banks, not to construct them. 

11. The Act of 1848 enacts that the district commissioners, upon 
complaint of any person owning river fronts liable to be damaged by 
overflow, that the banks are out of repair, etc., give notice to the 
owner of the part out of repair to repair the same in forty-eight hours; 
if he neglects, the commissioners shall repair the bank and enter the 
cost as a lien against the premises and collect it by scire facias, and in 
defence the owner shall show only that it has been paid; all matters 
necessary for recovery shall be considered proved by the lien and scire 


*This decision is not necessarily applicable in other States. 



27 


facias. The Act provides ncf mode for determining the necessity for 
the repair; it therefore does not furnish due process of law within 
the Bill of Rights and is unconstitutional. 

12. A law must furnish some just form or mode in which the duty 
of the citizen shall be determined before he can be visited with a pen¬ 
alty for non-performance. 

13. The proceeding must be in its nature judicial; it is not neces¬ 
sary that it should be before one of the ordinary judicial tribunals of 
the State. 

14. Craig v. Kline, 15 P. F. Smith, 413; Rutherford’s Case, 22 
P. F. Smith, 82, recognized. 

February 8, 1786. Before Agnew, C. J.; Sharswood, Mercur, Gor¬ 
don, Paxon, and Woodward, JJ. 

Error to the District Court of Philadelphia: Of January Term, 
1874, No. 235. 

This was a scire facias sur municipal claim, issued May 18, 1872, by 
the city of Philadelphia, to the use of Adam Guyer, to the use of 
William S. Blight and Stephen B. Poulterer, against Freeman Scott, 
owner, etc. 

The claim was filed December 10, 1870, for $5500, against a piece 
of land owned, etc., by Freeman Scott, situate in the late district of 
Richmond, now the Twenty-fifth ward of the city of Philadelphia, 
bounded, etc.: "Beginning at the southeasterly side of Richmond 
street, * * * thence extending southeastwardly * * * to 

low-water mark on the river Delaware; thence extending southwest- 
wardly along the river Delaware at low-water mark * * * to the 

place of beginning. * * * The said claim being for work and 

labor done, and materials, * * * furnished and used * * * 

in repairing and rebuilding, and rendering safe and secure the bank 
of the meadows along the river Delaware in front of the above-named 
premises, in pursuance of a contract dated the sixteenth day of April, 
Anno Domini eighteen hundred and seventy, made between the said 
Adam Guyer and the city of Philadelphia, and in compliance with 
the Act of Assembly, approved the twenty-fifth day of March, Anno 
Domini eighteen hundred and forty-eight, entitled 'An Act to pro¬ 
vide for the repairs of the meadow banks upon the Delaware front, in 
the county of Philadelphia,’ &c., and the city ordinance, approved 
the first day of July, Anno Domini eighteen hundred and sixty-three, 


28 


entitled 'An Ordinance to provide for the repairs of the meadow banks 
upon the Delaware River.’ ” 

The body of the Act (Pamph. L,, 250) is: 

"That it shall be the duty of the commissioners of the district of 
Richmond, * * * or of the supervisor * * * of roads in 

such portion or portions of said county, containing such banks * * * 
or of any person or officer duly authorized by them, for such purposes, 
upon complaint made to him or them, by any person or persons own¬ 
ing property fronting upon such river, or liable to be damaged by the 
overflow of the same, that said banks, or any part thereof are out of 
repair, or in a ruinous, unsafe and insecure condition, to give notice 
forthwith to the owner or owners of such part or portion to repair the 
same within forty-eight hours after such notice; which said notice 
shall be given to the owner * * * and in case such owner or 

owners shall neglect or refuse to cause such repairs to be made within 
the time aforesaid, or the same shall be defectively or insecurely done, 
it shall be the duty of such supervisor or commissioners to cause the 
said banks to be well and thoroughly repaired, and rendered safe and 
secure, for which purpose they shall have full right and authority to 
enter into and upon such banks, and the premises thereto adjacent, 
and after said repairs are so done they shall enter the same as a lien 
against the said premises, and the owners or reputed owners thereof. 

* ' ! ' and the same shall be recovered by an action of scire facias. 

* * * Upon the trial of such action, the said defendant shall only 
be permitted to aver and prove in defence that the said lien, in whole 
or in part, has been paid since the same was filed, and that all matters 
necessary for a recovery, on the part of the plaintiffs, shall be consid¬ 
ered as proved by the production of the lien and scire facias thereon, 
at the time of trial. ’ ’ 

A city ordinance of July 1, 1863, made it the duty of the chief 
commissioner of highways, upon complaint made by persons owning 
property on the Delaware River, as is mentioned in the Act of As¬ 
sembly, to proceed as is provided in the Act. After making the repairs 
the chief commissioner "shall render to the owner of the part of the 
bank repaired a bill of the costs and expenses of the repair, and if not 
paid in ten days, it shall be returned to the city solicitor, who shall 
enter a lien and proceed upon it,” etc. 

* * * * ^ * * 

Chief Justice Agnew delivered the opinion of the court, Mav 8 

1876. 

The argument in this case took an extended range of discussion 


29 


upon the powers of the State, of eminent domain and police. In their 
leading features, these powers are plainly different, the latter reaching 
even to destruction of property, as in tearing down a house to prevent 
the spread of a conflagration, or to removal at the expense of the 
owner, as in the case of a nuisance tending to breed disease. In the 
first instance, the community proceeds on the ground of overwhelm¬ 
ing calamity; and in the second because of the fault of the owner of 
the thing; and in either case compensation is not a condition of the 
exercise of the power. The same general principles attend its exer¬ 
cise in other directions, and it is generally based upon disaster, fault, 
or inevitable necessity. On the other hand, the power of eminent 
domain is conditioned generally upon compensation to the owner, 
and for the most part is founded, not in calamity or fault, but in pub¬ 
lic utility. These distinctions clearly mark the cases distant from 
the border line between the two powers, but in or near to it they be¬ 
gin to fade into each other, and it is difficult to say when compensa¬ 
tion becomes a duty and when not. A case of vested ownership on 
the bank of a great inland fresh-water river, yet where the flux and 
reflux of the tide is felt, presents something of this difficulty. The 
well-settled law of this State is, that, while the owner of land on 
such a river has an absolute title in the soil to the line of ordinary 
high water, between this line and the ordinary low-water line, his 
title is qualified by the public right of navigation. This prevents his 
use of the soil to the prejudice of the public right, and confers on the 
State the right to improve the intermediate space for public use with¬ 
out compensation: Commonwealth v. Fisher, Richter et al., 1 Pa. 
Rep., 462, 467; Case of the Philadelphia and Trenton Railroad Co., 
6 Whart., 25, 46; McKeen v. Delaware Div. Canal Co., 13 Wright, 
424, 440. 

What then are the relations of the State and the owner of the flats 
or cripple land lying between high and low water lines, and over 
which the waters of the stream ordinarily come and go? When by 
the grant of the State the owner has acquired title to such lands in a 
state of nature, it is clearly qualified, being subject to public use, and 
the right to improve the shores for useful public purposes; yet no duty 
lies on the owner to shut out the stream, or by making banks to ex¬ 
clude the natural flow of the water. On the contrary, the owner can 
not limit the public right of passage in ordinary high water, by struc¬ 
tures or deposits on or near to the low-water line: Wainwright v. 
McCullough, 13 P. F. Smith, 66; and even occupancy by means of 
wharves is subject to the public right of regulation. That the State 


30 


can bank out the water is not denied, for this flows from the right to 
protect the public right of navigation. In this respect the owner’s 
right is subordinate or qualified between the two lines, and he can 
not demand compensation, and on the other hand, the State can not 
improve at his expense. The influx of the water either from the tide 
or the natural rise of the river is an existing fact, and comes from no 
fault on his part, while the State conveyed to him only a qualified 
title in the soil. In her patent she has burthened her grant with no 
reservation, except that of a proportion of the minerals. By no con¬ 
tract relation can she impose on him the burthen of the public duty 
of banking out the stream for public purposes. It is no exercise of 
the police power of the State on the ground of his fault, whereby the 
expense can be laid on him. Nor can the private interests of other 
owners of like lands be made a ground of banking at his expense. 
They bought their lands in like condition, subject to the natural flux 
and reflux of the waters. If after a rising, circumstances make their 
lands better adapted to new purposes by reason of changes in business 
and population, certainly no duty upon their neighbor arises out of 
these circumstances to benefit them at his expense: Rutherford’s Case, 
22 P. F. Smith, 82. The interests of the State may make it a pub¬ 
lic affair, and cause her to exercise her powers for the public good, 
but this imposes no duty on the owner to pay the expense. He has 
done nothing to require him to shut out nature, acting in obedience 
to her own well-known general laws, subject to which all these own¬ 
ers of marsh lands bought. It would be an abuse of terms to call this 
an exercise of the police power of the State, in the sense of enforc¬ 
ing a remedy against the owner for a nuisance or a public injury. 

But we have been referred to the case of Crowley v. Copley, 2 La. 
Ann., 390, as a precedent. It is not, however, in point. The question 
of the power of the State to levee the Mississippi at the expense of the 
owner of the land was not made in that case. The question by the 
owner was, whether the law of Louisiana compelling the owners of 
lands along the IVIississippi to bear the expense of levees, to prevent 
the overflow of the river in high floods, was a tax contrary to the Act 
of Congress forbidding the imposition of taxes within five years after 
his purchase of the land from the United States. The court held 
that the assessment for levees was not a tax within the meaning and 
intent of the Act of Congress. No question was made whether the 
State Act of 1842 was constitutional on other grounds. It seems to 
have been taken for granted that it was. Besides the case is not par¬ 
allel to this. The overflow of the Mississippi in high floods is at- 


31 


tended with great destruction of property far inland, as well as along 
the river banks, owing to the low grade of the whole country. The 
case is one of great public calamity, where the property of the owner 
may have to be destroyed, as in the case of a great conflagration, to 
save the mischief from spreading to the dire injury of the public. 
This could be the only justification for the private injury. Yet even 
this is doubtful. The reason why a private building may be demol¬ 
ished to prevent the spread of fire is, that it is called for by the im¬ 
mediate necessity of the case. It must be done on the instant, and 
because of an actual necessity. But could the State, in a time of 
security, when no fire is present, pull down buildings without com¬ 
pensation at certain points, where it might be supposed the public 
interest would be served if a fire should happen? No one would con¬ 
cede this monstrous proposition. The State may open or widen 
streets, and do many things for public convenience and security, 
but in doing so she exercises her power of eminent domain, and al¬ 
lows iust compensation either in benefits or money, or both, accord¬ 
ing to the circumstances. So the States along the Mississippi may 
levee the river for public protection, but it seems scarcely consistent 
with just rights of property that they should do this by general law at 
the expense of the owners of private property. 

A sudden breach and instant danger might change the rule. Mr. 
Cooley, in his Constitutional Limitations, states the case as a general 
principle, on the authority of Crowley v. Copley, but without any 
reference to the precise question decided, or the ground of the exer¬ 
cise of the power. It would seem probable he attributed it to the 
exercise of the power of eminent domain, as he begins the next sen¬ 
tence with these words: "And the right of eminent domain is some¬ 
times exercised in order to drain considerable tracts of country.” But 
if it be this power, the condition of its exercise would certainly be 
compensation in some form, benefits it might be. A better view of 
the relation of the owners of land on the Mississippi, it seems to be, 
is that of Chief Justice Shaw, in the Commonwealth v. Alger, 7 
Cushing, 86-7, when discussing the power of the State to prevent an 
owner of tide-water land from removing a natural embankment, to the 
prejudice of the public. "Principles,” he says, "are tested by tak¬ 
ing extreme cases. Take the case of the river Mississippi where 
large tracts of country, with cities and villages, depend for their pro¬ 
tection upon the natural river bank, which is private property. Per¬ 
haps, under such circumstances, it might not be too much to say, not 
only that the owner can not do any positive act towards removing the 


32 


embankment, but that he may properly be held responsible for the 
permissive waste of it by negligence and inattention.” Here is no 
intimation of a liability to throw up new banks, but only a moderate 
expression of opinion of liability for waste. A natural marsh, be¬ 
tween high and low water lines, has no such features as the Missis¬ 
sippi lands, and no such great public calamity to guard against. No 
one is interested but the owner of like marsh lands, having a like 
qualified title, subject to a like natural flow of the river. So much 
may safely be said of the original or natural state of the property. 
But where the State has banked out the water, and the owner is left 
in possession of the improvement made by the State, under her sov¬ 
ereign authority and at her own expense, it seems to me he stands in 
a new and different relation. The State having, by her own author¬ 
ity, taken the land between high and low water lines out of the pub¬ 
lic use, has, in effect, appropriated it to the use of the owner of the 
qualified title, and in effect conferred upon him an absolute title. 
She has thus benefited him, and it is but just that the duty of repair 
should now devolve upon him. To this extent we may, I think, con¬ 
clude that the Act of March 25, 1848, under which this proceeding 
took place, is constitutional: Pamph. L., 1848, p. 250. Its title is 
fairly descriptive of its true purpose, though the Act having been 
passed before the constitutional amendment of 1864, the title has not 
the same force in interpretation it would have since. It is entitled, 
"An Act to provide for the repairs of the meadow banks upon the 
Delaware front in the county of Philadelphia above the city of Phil¬ 
adelphia,” etc. The purpose of the Act was to compel repairs of ex¬ 
isting meadow banks, not to construct them. The only question, 
therefore, remaining is whether the Act has furnished a constitutional 
mode of proceeding to bind the owner of the land to the payment of 
the expense of the repairs. The following are all its material provi¬ 
sions: "It shall be the duty of the commissioners * * * upon 

complaint by any person owning property fronting upon such river, 
or liable to be damaged by the overflow of the same, that said banks, 
or any part thereof, are out of repair, or in an unsafe or insecure con¬ 
dition, to give notice forthwith to the owner or owners of such part 
or portion to repair the same within forty-eight hours after such no- 
t ' ce > ' ' ' an ^ in case such owner or owners shall neglect or 

- refuse to cause such repairs to be made within the time aforesaid 

vj/ • | | 

it shall be the duty of such commissioners to cause the said 
banks to be well and thoroughly repaired, &c., and they shall enter 
the same as lien against the said premises and the owners thereof.” 


33 


The law then provides for a scire facias to enforce payment, and de¬ 
clares "that upon the trial of such action, the said defendant shall 
only be permitted to aver and prove in defence that the lien, in whole 
or in part, has been paid since the same was filed, and that all mat¬ 
ters necessary for a recovery on part of the plaintiffs shall be consid¬ 
ered as proved by the production of the lien and scire facias thereon 
at the time of trial. 

The law, it will be seen, provides no mode of determining the 
necessity for repair, not even the judgment of the commissioners, for 
they are bound on complaint, forthwith to give notice, and the owner 
is bound within forty-eight hours after notice , to make the repairs, and 
on default, the commissioners shall do the work at his expense. 
Whether the bank actually needs repair, or the injury complained of, 
if any, is a total destruction of the bank, demanding reconstruction, 
or a mere repair, which the owner is bound to do, is not to be ascer¬ 
tained before the liability is settled upon him. He is to pay at all 
events, and this case itself is evidence of the necessity of the provi¬ 
sion to determine the nature of the thing complained of, for we have 
a finding of $6445.66 against the defendant, a sum which looks more 
like the price of reconstruction than of repair. Repair is all this law 
provides for. Perhaps some allowance might be made, and the clause 
requiring the commissioners "to cause the banks to be well and 
thoroughly repaired,” might be interpreted as inferentially requiring 
an examination and decision upon the duty of repairing before they 
proceeded to do it. But we are met by the proviso, which forbids 
any defence but payment. There can be no inquiry into the fact 
whether the commissioners actually did determine it to be a case of 
necessary repair, whilst they may have gone on different grounds. An 
Act which subjects a man to a penalty of over six thousand dollars for 
not doing the work for which complaint was lodged, should clearly 
devolve the duty of decision upon some impartial tribunal. The case 
of Kennedy v. The Board of Health, 2 Barr, 366, is not in point. 
There the 27th Section of the Act of 29th of January, 1818, grounds 
the right of the board to abate the nuisance in express words in the 
opinion of the board that the nuisance tends to endanger the health of 
the citizens. This is an essential prerequisite, and the citizen is ab¬ 
solutely entitled to the judgment of the board on this point. This 
feature is at the foundation of the decision. In that case the consti¬ 
tutional question was not raised. But here the learned judge below 
was of opinion that the Act of 1848 does not furnish due process of 
law, within the protection of the 9th Section of the Declaration of 


34 


Rights, that no one shall be "deprived of his life, liberty or property 
unless by the judgment of his peers or the law of the land.” In this 
view we concur. What is meant by the law of the land has been fully 
discussed in Craig v. Kline, 15 P. F. Smith, 413, and the cited au¬ 
thorities. I shall not enlarge upon it. Suffice it to say, the law 
must furnish some just form or mode, in which the duty of the citi- ’ 
zen shall be determined before he can be visited with a penalty for 
non-performance of the alleged duty. The proceeding must be in its 
nature judicial, though it is not necessary it should be before one of 
the ordinary judicial tribunals of the State. 

Judgment affirmed. 

Pennsylvania State Reports, 81, pp. 80-82, 85-90. 


WALL v. PITTSBURGH HARBOR CO., LTD., APPELLANT* 

(Marked to be reported.) 

Riparian Owner — Trespass—High and Low Water Mark — Navigation. 

A person or corporation which makes more than a temporary mooring 
between high and low water mark in a navigable river is a mere tres¬ 
passer upon the owner’s right of property; and it is immaterial that the 
trespasser did not inconvenience the owner’s approach to the shore, or 
that the owner had in fact made no use of the property. 

Evidence—Measure of Damages—Rental Value. 

In such a case if the owner is prevented from renting his property by 
reason of the unlawful action of the person committing the trespass, the 
loss in rental value is a direct result and furnishes an essential element of 
damages. 

STATEMENT OF FACTS. 

Argued October 28, 1892. Appeal No. 80, October Term, 1892, 
from judgment of C. P. No. 2, Allegheny County, April Term, 1891, 
No. 425, on verdict for plaintiff, Honora Wall. Before Paxson, C. J.; 
Sterrett, Green, Williams, McCollum, Mitchell and Heydrick, JJ. 

Trespass for intrusion upon plaintiff’s property between high and low 
water mark. 

Plaintiff in her statement averred that, on or about September 19, 
1887, “the defendant association unlawfully entered upon a part of said 
premises of plaintiff covered with water, and placed or caused to be 
placed on said premises coal boats, barges and flats; that said plaintiff 
caused the defendant association to be notified to remove said boats, 
barges and flats, but the defendant association did not remove the same 
for a long space of time; that said defendant association from that time 
until on or about April 29, 1890, and from June 23, 1890, until this 
present time continued at frequent intervals to enter upon, use and occupy 
the said premises of plaintiff, without her consent, placing boats, barges 
and flats thereon and keeping them thereon for long spaces of time; that 
also during said above-mentioned periods of time said defendant associa¬ 
tion immediately outside of low-water mark on said river and in front of 
said premises of plaintiff, placed boats, barges and flats and kept them 


*This decision is not necessarily applicable in other States. 



36 


there for long and unreasonable times, by reason whereof the plaintiff 
was prevented from having free and convenient access to said river from 
her said property.” 

At the trial, before White, J., plaintiff’s evidence tended to corroborate 
the averments of the statement. 

A witness for plaintiff was asked: “Q. Do you know what the fair 
market value of that river front property is, or was in the year 1887, for 
renting purposes? A. Yes, sir. Q. What was it worth a year? 

Objected to as incompetent and irrelevant. 

Plaintiff’s counsel proposed to follow that by evidence that they pre¬ 
vented plaintiff from using it all, and prevented them from renting it to 
other people. 

By the court: In view of the subsequent offer, the objection is over¬ 
ruled. Bill sealed. 

The witness estimated the annual rental value at between $300 and 
$400. (8) 

POINTS—ASSIGNMENTS OF ERROR. 

Plaintiff’s points were as follows: 

“1. If the jury believes, from the evidence, that from September, 1887, 
to February, 1891—the date of bringing this suit—the defendant com¬ 
pany from time to time entered upon plaintiff’s premises, and placed 
boats, barges or flats thereon, between high and low water mark, and 
kept them there for an unreasonable time, and made a profit out of the 
property of the plaintiff by so using the same, such use and occupation 
was not an incident to the right of navigation, but was an unlawful in¬ 
vasion of plaintiff’s rights, for which she is entitled to recover damages.” 
Affirmed. (1) 

“2. If the jury find that the defendant company did so use and occupy 
plaintiff’s property, then the plaintiff is entitled to compensation for all 
the loss and damage she has sustained by reason of said occupation of 
her property by the defendant company. And if the jury believe that 
said occupation of plaintiff’s property was willful and deliberate, and was 
a wanton invasion of plaintiff’s rights, then they are not restricted to com¬ 
pensation only in giving damages, but in addition to compensation may 
give such further damages as will tend to prevent a repetition of the 
wrong, either by the defendant company or by others. Answer: Ordi¬ 
narily in cases of this kind, the measure of damages is compensation for 
the injury done. But where the injury was done in a malicious or 
wanton spirit, and in utter disregard of plaintiff’s rights, the jury may go 


37 


beygnd mere compensation, and give a greater sum by way of punish¬ 
ment for the wrong committed. If the defendant used the river in front 
of plaintiff’s property under a mistaken idea that they had a right so to use 
it, and not with any force or violence, and not with any intention or 
thought of injuring the plaintiffs, the verdict should be for compensation 
only.” (2) 

Defendant’s points were as follows: 

41 1. That unless the jury find that there was an actual obstruction to 
the access to the plaintiff’s property, which actually did prevent the ap¬ 
proach of water craft thereto, there can be no verdict for the plaintiff, and 
the verdict must be for the defendant.” Refused. (3) 

“2. If the jury should find that there was any actual obstruction or 
interference with the access to plaintiff’s property, then the measure of 
damages in this case would be the loss caused by the actual obstruction 
to such access, and it would not be any supposed loss of annual rent, per 
foot frontage, along the property. Answer: The plaintiff can not re¬ 
cover on the footing of a rental, for this is not an action for rent, and de¬ 
fendant only used the river front at times. But in addition to the elements 
of damage suggested in the point, the jury may take into consideration 
under the evidence whether the plaintiffs were prevented from renting 
their landing in consequence of the acts of the defendants.” (4) 

“3. Under all the evidence in this case, the verdict should be for the 
defendant.” Refused. (5) 

The court charged, on the question of damages, in part as follows: 

(“While you are not to place this on the footing of rental at all, you 
are to consider, as I will intimate in my answer to one of the points of 
defendants’ counsel, whether these plaintiffs were injured in the way of 
preventing them from making a lease of their landing.”) (6) 

The court here read the points of counsel and the answers thereto. 
To the answer of defendants’ second point, the court added: 

“In other words, this point means that the only damages you could 
give would be from obstructing the way to the plaintiffs’ property, so 
that they were interfered with in their use of the river. I think the jury 
may consider in addition to that this other element, if you find it from 
the evidence, that the plaintiffs were prevented from renting their front in 
consequence of the use made of it by the defendants. According to the 
testimony of the defendants, they claimed a right to do what they were 
doing, let their barges slip down and remain some time in front of the 
plaintiffs’ property. The plaintiffs might not be able to rent it when the 
defendants claim that right, because it would involve, perhaps, a law 


38 


suit; a person would not probably be willing to rent it, knowing that he 
would be involved in a law suit with the defendants under their claim of 
usage, and if you find from the evidence that such was the case, then 
that may be an additional element of damages in this case. (7) 

Verdict and judgment for plaintiff for $400. Defendant appealed. 

Errors assigned were, inter alia (1—7), instructions as above, quoting 
them; (8) ruling on evidence; quoting bill of exceptions and evidence. 

ARGUMENTS. 

W. P. Potter, Wm. A. Stone with him, for appellants.—The river 
was a navigable stream and a public highway: Wainwright v. McCul¬ 
lough, 63 Pa., 66; Baker v. Lewis, 33 Pa., 305. 

The mooring of rafts or coal boats in the river and allowing them to 
remain in the water, between high and low water marks, for such a time 
as may be necessary, is within the rights of navigators of the rivers: 
Hayward v. Knapp, 23 Minn., 430; Davis v. Winslow, 51 Maine, 264; 
Weise v. Smith, 3 Oregon, 445; Brown v. Kentfield, 50 Cal., 129; 
Fulmer v. Williams, 122 Pa., 208. 

The evidence shows that in this case plaintiff made no use whatever of 
her shore; and that she was not willing that any one else should even 
make use of the water in the river in front of her property without pay¬ 
ing tribute therefor. 

C. W. Jones, E. P. Jones with him, for appellee.—The title of ap¬ 
pellee in this case ran to low-water mark on the Monongahela River. - 
To high-water mark her title was absolute. Between high and low 
water mark her title was qualified. It was subject to the right of way of 
the public for the purposes of navigation, with the rights incident thereto, 
but subject and affected by this right of navigation: L. V. R. R. v. 
Prone, 28 Pa., 206; Zug v. Com., 70 Pa., 141; Fulmer v. Williams, 
122 Pa., 191. 

The rights appellant company may have to use the property of ap¬ 
pellee are limited strictly to the rights of navigation, and the moment 
they engaged in the business of holding boats for other people they lost 
their character of navigators, and their acts were acts of trespass for which 
they were liable in damages: Bigler & Son v. O’Connor, 2 W. N., 180. 

A person owning premises abutting on a public highway, whose right 
of access to the same is unreasonably obstructed, may recover damages 
from any person causing such obstruction: Dillon, Mun. Corp., §730. 

Where the trespass suspends or impairs the enjoyment of the premises, 
compensation may be given on the basis of rental value: 3 Sutherland 


39 


on Damages, p. 367; Sedgwick on Damages, §932; Chicago v. Huener- 
bein, 85 Ill., 594. 

OPINION OF THE COURT. 

Opinion by .Mr. Justice Sterrett, January 3, 1893. 

The defendant company has no just reason to complain of the charge 
of the court below. In common with the general public, defendant had 
a right of navigation over plaintiff’s land, between high and low water 
mark; and, when necessary to the exercise of that right, it might have 
made a temporary mooring; but, in any use which it made beyond that, 
it became a mere trespasser on her right of property. That the defend¬ 
ants’ moorage was not necessary to the exercise of the right of navigation 
is too clear to doubt. It is immaterial that the company defendant did 
not inconvenience plaintiff’s approach to the shore, or that she had in 
fact made no use of the property; for the company’s right was of naviga¬ 
tion alone, and its conduct an invasion of plaintiff’s right of property for 
which it was liable in damages. 

The defendant complains that the rental value of the property was 
made an element of damages. Rent, as rent, was of course not recover¬ 
able; but surely if plaintiff was prevented from renting her property by 
reason of the unlawful action of defendant, an injury was done for which 
she was entitled to compensation. The loss in rental value was a direct 
result and furnished an obviously essential element of damages. 

Neither of the specifications of error is sustained. 

Judgment affirmed. 

Pennsylvania State Reports, Vol. 152, pp. 427-432. 


SHIVELY v. BOWLBY. 

Error to the Supreme Court of the State of Oregon. No. 787. Submitted December 
2, 1892. Decided March 5, 1894. 

This court has jurisdiction to review by writ of error a judgment of 
the highest court of the State of Oregon, deciding that a donation land 
claim under the act of Congress of September 27, 1850, c. 76, of land 
bounded by tide water, passed no title or right below high-water mark, 
as against a subsequent grant from the State. 

By the common law, the title in the soil of the sea, or of arms of the 
sea, below high-water mark, except so far as private rights in it have been 
acquired by express grant, or by prescription or usage, is in the King, sub¬ 
ject to the public rights of navigation and fishing; and no one can erect 
a building or wharf upon it without license. 

Upon the American Revolution, the title and the dominion of the tide 
waters and of the lands under them vested in the several States of the 
Union within their respective borders, subject to the rights surrendered 
by the Constitution to the United States. 

In the original States, by various laws and usages, the owners of lands 
bordering on tide waters were allowed greater rights and privileges in the 
shore below high-water mark than they had in England. 

The new States admitted into the Union since the adoption of the 
Constitution have the same rights as the original States in the tide waters, 
and in the lands under them, within their respective jurisdictions. 

The United States, upon acquiring a Territory, whether by cession 
from one of the States, or by treaty with a foreign country, or by dis¬ 
covery and settlement, take the title and the dominion of lands below 
high-water mark of tide waters for the benefit of the whole people, and 
in trust for the future States to be created out of the Territory. 

Upon the question how far the title extends of the owner of land 
bounding on a river actually navigable, but above the ebb and flow of the 
tide, there is a diversity in the laws of the different States; but the pre¬ 
vailing doctrine now is that he does not, as in England, own to the thread 
of the stream. 

The title and rights of riparian or littoral proprietors in the soil below 
high-water mark are governed by the laws of the several States, subject 
to the rights granted to the United States by the Constitution. 

The United States, while they hold country as a Territory, have all 
the powers both of national and of municipal government, and may 


grant, for appropriate purposes, titles or rights in the soil below high- 
water mark of tide waters. 

Congress has not undertaken, by general laws, to dispose of lands below 
high-water mark of tide waters in a Territory; but, unless in case of 
some international duty or public exigency, has left the administration 
and disposition of the sovereign rights in such waters and lands to the 
control of the States, respectively, when admitted into the Union. 

A donation land claim, bounded by the Columbia River, acquired 
under the act of Congress of September 27, 1850, c. 76, while Oregon 
was a Territory, passes no title or right in lands below high-water mark, 
as against a subsequent grant from the State of Oregon, pursuant to its 
statutes. 


STATEMENT OF THE CASE. 

The original suit was in the nature of a bill in equity, brought June 8, 
1891, by John Q. A. Bowlby and W. W. Parker against Charles W. 
Shively and wife, in the Circuit Court for the county of Clatsop and 
Stare of Oregon, to quiet the title to lands below high-water mark in the 
city of Astoria. The case, as appearing by the record, was as follows : 

On and before May 20, 1854, John M. Shively and wife were the 
owners of a donation land claim, as laid out and recorded by him under 
the act of Congress of September 27, 1850, c. 76 (9 Stat., 496), com¬ 
monly known as the Oregon Donation Act, embracing the then town 
and much of the present city of Astoria, and bounded on the north by 
the Columbia River. 

On May 20, 1854, John M. Shively laid out and caused to be re¬ 
corded a plat of that claim, not only of the land above high-water mark, 
but also of adjacent tide lands and a portion of the bed of the Columbia 
River, including the lands in controversy, and divided into blocks 300 
feet square, and separated from each other by streets 30 or 60 feet wide, 
some running at right angles to, and the others nearly parallel with, high- 
water mark, the outermost of which streets were not within 800 feet of 
the ship channel. 

Blocks 4 and 9 were above ordinary high-water mark. Block 146 was 
in front of block 4, and between high and low water mark. In front of 
block 9 came blocks 141, 126 and 127 successively. A strip about 50 
feet wide, being the southern part of block 141, was above high-w'ater 
mark, and the whole of the rest of that block was below high-water mark 
and above low-water mark. The line of ordinary low tide was on Sep¬ 
tember 18, 1876, at the north line of that block; but on December 15, 


42 


1890, and for some time before this date, was 100 feet north of the north 
line of block 127. 

On February 18, 1860, John M. Shively and wife conveyed blocks 9, 
126, 127 and 146, “in the town plat of Astoria, as laid out and recorded 
by John M. Shively,” to James Welch and Nancy Welch, whose title 
was afterwards conveyed to the plaintiffs. 

On June 2, 1864, John M. Shively laid out and caused to be recorded 
an additional plat, covering all the space between blocks 127 and 146 and 
the channel. 

In 1865, the United States issued a patent to John M. Shively and 
wife for the donation land claim, bounded by the Columbia River. 

On September 18, 1876, the State of Oregon, by its governor, secre¬ 
tary and treasurer, acting as the board of school land commissioners, 
pursuant to the statute of Oregon of October 26, 1874 (Laws of 1874, 
p. 76), amending the statute of Oregon of October 28, 1872 (Laws of 1872, 
p. 129,) the provisions of both which statutes are set forth in the margin (a) 
* * * executed to the plaintiffs a deed of all the lands lying between 
high-water mark and low-water mark in front of block 9, including all 
the tide land in block 141 ; and also a deed of all the tide lands in block 
146; but never executed to any one a deed of any tide lands north of 
block 146. 

The plaintiffs afterwards held possession of the lands so conveyed to 
them, and maintained a wharf in front of block 127, which extended 
several hundred feet into the Columbia River, and at which ocean and 
river craft were wont to receive and discharge freight. 

On December 15, 1890, John M. Shively, having acquired whatever 
title his wife still had in the lands in controversy, conveyed all his right, 
title and interest therein to the defendant Charles W 7 . Shively. 

On April 7, 1891, the defendants, pretending to act under the statute 
of Oregon of February 18, 1891 (Laws of 1891, p. 594), executed and 
recorded an instrument dedicating to the public their interest in some of 
the streets adjacent to these lands. 

The plaintiffs claimed, under the deeds from the State of Oregon, the 
title in all the tide lands on the west half of block 141, on all of blocks 
126 and 127 and north thereof, and on the west half of block 146 and 
north thereof, between the lines of low and ordinary high tide of the 
Columbia River;<and also claimed all the wharfing rights and privileges 
in front thereof to the ship channel; and prayed that the cloud created by 
the defendant’s instrument of dedication might be removed, and the de- 


fa) Marginal notes omitted. 



43 


fendants be adjudged to have no title or right in the premises, and for 
further relief. 

The defendants denied any title or right in the plaintiffs, except in the 
west half of block 146; and, by colmter-claim, in the nature of a cross 
bill, stating the facts above set forth, asserted that, under the patent from 
the United States to John M. Shively, and his deed to Charles W. 
Shively, the latter was the owner in fee simple of so much of the east 
half of block 141 as was above high-water mark, and all of the tide lands 
and riparian and wharfing rights in front thereof to the channel, except¬ 
ing blocks 126 and 127; and was also the owner of all the riparian and 
wharfing rights in front of block 4 to the channel, excepting block 146; 
and contended that the first deed from the State of Oregon to the plain¬ 
tiffs conveyed no title in that part of block 141 above high-water mark, 
or in any tide lands, and that John M. Shively’s conveyance of specific 
blocks by reference to his plat passed no wharfing rights, in front thereof; 
and prayed that Charles W. Shively might have possession of said 
premises, and damages against the plaintiffs for withholding the same and 
further relief. 

The court sustained a demurrer of the plaintiffs to the counter-claim 
(except as to that part of block 141 above high-water mark), and dis¬ 
missed that claim; and then, on motion of the plaintiffs, dismissed their 
suit, without prejudice to their interest in the subject thereof. 

T he defendant Charles W. Shively appealed to the Supreme Court of 
the State, which affirmed the judgment, upon the ground that the grant 
from the United States, bounded by the Columbia River, passed no title 
or right in lands below high-water mark, as against the subsequent deeds 
from the State of Oregon; 22 Oregon, 410. 

The said defendant thereupon sued out this writ of error, and assigned 
the following errors: 

“First. The Supreme Court of Oregon decided that a grantee of the 
United States, under the act of Congress of September 27, 1850, known 
as the Oregon Donation Land Law, of land bounded by th$ tidal navi¬ 
gable waters of the Columbia River, obtained by virtue of said grant no 
exclusive access to the channel of said river, and no wharfage rights below 
ordinary high tide of said river in front of said high land.” 

“Second. The Supreme Court of Oregon decided that said State was 
the absolute owner of all rights in front of the high land granted by the 
United States to said grantee, with said Columbia River as a boundary, 
below the meander line, out to the channel of said Columbia River, to 
the exclusion of all rights of the grantee aforesaid of the United States, 
under the said act of Congress of September 27, 1850.” 


44 


“Third. The Supreme Court of Oregon decided that said State had 
the absolute power to dispose of the soil of said river and of all wharfage 
rights in front of the high land granted by the United States to said 
grantee, the predecessor of the plaintiff in error, with said Columbia 
River as a boundary, to a private person for a private beneficial use, and 
had so disposed of the same to the defendants in error.’ 

Mr. A. H. Garland, Mr. John F. Dillon, and Mr. Sidney Bell, for 
plaintiff in error. 

Mr. J. N. Dolph for defendants in error. 

Mr. Justice Gray, after stating the case, delivered the opinion of the 
court. 

OPINION OF THE COURT. 

This case concerns the title in certain lands below high-water mark in 
the Columbia River in the State of Oregon; the defendant below, now 
plaintiff in error, claiming under the United States, and the plaintiffs 
below, now defendants in error, claiming under the State of Oregon; and 
is in substance this: James M. Shively, being the owner, by title obtained 
by him from the United States under the act of Congress of September 
27, 1850, c. 76, while Oregon was a Territory, of a cract of land in 
Astoria, bounded north by the Columbia River, made a plat of it, laying 
it out into blocks and streets, and including the adjoining lands below 
high-water mark; and conveyed four of the blocks, one above and three 
below that mark, to persons who conveyed to the plaintiffs. The plain¬ 
tiffs afterwards obtained from the State of Oregon deeds of conveyance 
of the tide lands in front of these blocks, and built and maintained a 
wharf upon part of them. The defendant, by counter-claim, asserted a 
title, under a subsequent conveyance from Shively, to some of the tide 
lands, not included in his former deeds, but included in the deeds from 
the State. 

The counter-claim, therefore, depended upon the effect of the grant 
from the United States to Shively of land bounded by the Columbia 
River, and of the conveyance from Shively to the defendant, as against 
the deeds from the State to the plaintiffs. The Supreme Court of 
Oregon, affirming the judgment of a lower court of the State, held the 
counter-claim to be invalid, and thereupon, in accordance with the State 
practice, gave leave to the plaintiffs to dismiss their complaint, without 
prejudice: Hill’s Code of Oregon, 246, 393. 

The only matter adjudged was upon the counter-claim. The judg¬ 
ment against its validity proceeded upon the ground that the grant from 
the United States upon which it was founded, passed no title or right, as 


45 


against the subsequent deeds from the State, in lands below high-water 
mark. This is a direct adjudication against the validity of a right or 
privilege claimed under a law of the United States, and presents a Federal 
question within the appellate jurisdiction of this court: Rv. Stat., 709. 
That jurisdiction has been repeatedly exercised, without objection or 
doubt, in similar cases of writs of error to the state courts: Railroad Co. 
v. Schurmeir, 7 Wall., 272; Packer v. Bird, 137 1. S., 661; Knight v. 
United States Land Association, 142 U. S., 161. 

It was argued for the defendants in error that the question presented 
was a mere question of construction of a grant bounded by tide water, 
and would have been the same as it is if the grantor had been a private 
person. But this is not so. The rule of construction in the case of such 
a grant from the sovereign is quite different from that which governs 
private grants. The familiar rule and its chief foundation were felici¬ 
tously expressed by Sir William Scott: “All grants of the Crown are to 
be strictly construed against the grantee, contrary to the usual policy of 
the law in the consideration of grants; and upon this just ground, that 
the prerogatives and rights and emoluments of the Crown being con¬ 
ferred upon it for great purposes, and for the public use, it shall not be 
intended that such prerogatives, rights and emoluments are diminished by 
any grant, beyond what such grant by necessary and unavoidable con¬ 
struction shall takeaway:” The Rebeckah, 1 C. Rob., 227, 230. Many 
judgments of this court are to the same effect: Charles River Bridge v. 
Warren Bridge, 11 Pet., 420, 544-548; Martin v. Waddell, 16 Pet., 367, 
411; Central Transportation Co. v. Pullman’s Car Co., 139 U. S., 24, 49. 

In Yesler v. Washington Harbor Commissioners, at the last term, in 
which the writ of error was dismissed for want of jurisdiction, it did not 
appear that the plaintiff in error claimed under a grant from the United 
States: 146 U. S., 646, 653, 654. 

The present case being clearly within our jurisdiction, we proceed to 
the consideration of its merits. 

The briefs submitted to the court in the case at bar, as well as in 
Yesler v. Washington Harbor Commissioners, above cited, and in Prosser 
v. Northern Pacific Railroad (which now stands for judgment), have 
been so able and elaborate, and have disclosed such a diversity of view as 
to the scope and effect of the previous decisions of this court upon the 
subject of public and private rights in lands below high-water mark of 
navigable waters, that this appears to the court to be a fit occasion for a 
full revievy of those decisions and a consideration of other authorities 
upon the subject. 

I. By the common law, both the title and the dominion of the sea, 


46 


and of rivers and arms of the sea, where the tide ebbs and flows, and of 
all the lands below high-water mark, within the jurisdiction of the Crown 
of England, are in the King. Such waters, and the lands which they 
cover, either at all times, or at least when the tide is in, are incapable of 
ordinary and private occupation, cultivation and improvement; and their 
natural and primary uses are public in their nature, for highways of 
navigation and commerce, domestic and foreign, and for the purpose of 
fishing by all the King’s subjects. Therefore the title, jus privatum , in 
such lands, as of waste and unoccupied lands, belongs to the King as 
the sovereign; and the dominion thereof,^ publicum , is vested in him 
as the representative of the nation and for the public benefit. 

The great authority in the law of England upon this subject is Lord 
Chief Justice Hale, whose authorship of the treatise De Jure Maris , 
sometimes questioned, has been put beyond doubt by recent researches: 
Moore on the Foreshore (3d ed.), 318, 370, 413. 

In that treatise, Lord Hale, speaking of “the King’s right of propriety 
or ownership in the sea and soil thereof” within his jurisdiction, lays 
down the following propositions: “The right of fishing in this sea and 
the creeks and arms thereof is originally lodged in the Crown, as the 
right of depasturing is originally lodged in the owner of the waste whereof 
he is lord, or as the right of fishing belongs to him that is the owner of a 
private or inland river.” “But though the King is the owner of this 
great waste, and as a consequent of his propriety hath the primary right 
of fishing in the sea and the creeks and arms thereof; yet the common 
people of England have regularly a liberty of fishing in the sea or creeks 
or arms thereof, as a public common of piscary, and may not without 
injury to their right be restrained of it, unless in such places, creeks or 
navigable rivers, where either the King or some particular subject hath 
gained a propriety exclusive of that common liberty.” “The shore is 
that ground that is between the ordinary high-water and low-water mark. 
This doth prima facie and of common right belong to the King, both in 
the shore of the sea and the shore of the arms of the sea: ” Hargrave’s 
Law Tracts, 11, 12. And he afterwards explains : “Yet they may belong 
to the subject in point of propriety, not only by charter or grant, 
whereof there can be but little doubt, but also by prescription or usage.” 
“But though the subject may thus have the propriety of a navigable 
river part of a port, yet these cautions are to be added, viz:” “Second. 
That the people have a public interest, a jus publicum , of passage and re¬ 
passage with their goods by water, and must not be obstructed by 
nuisances.” For the jus privatum of the owner or proprietor is charged 
with and subject to that jus publicum which belongs to the King’s sub- 


47 


jects; as the soil of an highway is, which though in point of property it 
may be a private man’s freehold, yet it is charged with a public interest 
of the people, which may not be prejudiced or damnified:” pp. 25, 36. 

So in the second part, De Portibus Maris, Lord Hale says that “when a 
port is fixed or settled by ” * * “ the license or charter of the King, or that 
which presumes and supplies it, viz: custom and prescription; ” * * “though 
the soil and franchise or dominion thereof prima facie be in the King, or 
by derivation from him in a subject; yet that jus privatum is clothed and 
superinduced with a jus publicum , wherein both natives and foreigners in 
peace with this kingdom are interested, by reason of common commerce, 
trade and intercourse.” “But the right that I am now speaking of is 
such a right that belongs to the King jure prerogative, and it is a distinct 
right from that of propriety; for, as before 1 have said, though the 
dominion either of franchise or propriety be lodged either by prescription 
or charter in a subject, yet it is charged or affected with that jus publicum 
that belongs to all men, and so it is charged or affected with that jus 
regium , or right of prerogative of the King, so far as the same is by law 
invested in the King:” Hargrave’s Law Tracts, 84, 89. 

In England, from the time of Lord Hale, it has been treated as settled 
that the title in the soil of the sea, or of arms of the sea, below ordinary 
high-water mark, is in the King, except so far as an individual or a cor¬ 
poration has acquired rights in it by express grant, or by prescription or 
usage: Fitzwalter’s Case, 3 Keb., 242; S. C., 1 Mod., 105; 3 Shep. Ab., 
97; Com. Dig. Navigation, A, B; Bac. Ab. Prerogative, B; The King 
v. Smith, 2 Doug., 441; Attorney-General v. Parmeter, 10 Price, 378, 
400, 401, 411, 412, 464; Attorney-General v. Chambers, 4 D. M. & G., 
206, and 4 D. & J., 55; Malcomson v. O’Dea, 10 H. L. Cas., 591, 618, 
623; Attorney-General v. Emerson (1891), App. Cas., 649; and that 
this title, jus privatum , whether in the King or in a subject, is held sub¬ 
ject to the public right, jus publicum , of navigation and fishing: At¬ 
torney-General v. Parmeter, above cited ; Attorney-General v. Johnson, 
2 Wilson Ch., 87, 101-103; Gann v. Free Fishers of Whitstable, 11 H. 
L. Cas., 192. The same law has been declared by the House of Lords 
to prevail in Scotland : Smith v. Stair, 6 Bell App. Cas., 487; Lord 
Advocate v. Hamilton, 1 Macq., 46, 49. 

It is equally well settled that a grant from the sovereign of land 
bounded by the sea, or by any navigable tide water, does not pass any 
title below high-water mark, unless either the language of the grant, or 
long usage under it, clearly indicates that such was the intention: Lord 
Hale, in Hargrave’s Law Tracts, 17, 18, 27; Somerset v. Fogwell, 5 B. 


48 


& C., 875, 885; S. C., 8 D. & R., 747, 755; Smith v. Stair, 6 Bell 
App. Cas., 487; United States v. Pacheco, 2 Wall., 587. 

By the law of England, also, every building or wharf erected, without 
license, below high-water mark, where the soil is the King’s, is a pur- 
presture, and may, at the suit of the King, either be demolished, or be 
seized and rented for his benefit, if it is not a nuisance to navigation: 
Lord Hale, in Hargrave’s Law Tracts, 85; Mitf. PI. (4th ed.), 145; 
Blundell v. Catterall, 5 B. & Aid., 268, 298, 305; Attorney-General v. 
Richards, 2 Anstr., 603, 616; Attorney-General v. Parmeter, 10 Price, 
378, 411, 464; Attorney-General v. Terry, L. R., 9 Ch., 425, 429, note; 
Weber v. Harbor Commissioners, 18 Wall., 57, 65; Barney v. Keokuk, 
94 U. S., 324, 337. 

By recent judgments of the House of Lords, after conflicting decisions 
in the courts below, it has been established in England, that the owner of 
land fronting on a navigable river in which the tide ebbs and flows has a 
right of access from his land to the river; and may recover compensation 
for the cutting off of that access by the construction of public works 
authorized by an act of Parliament which provides for compensation for 
“injuries affecting lands,” “ including easements, interests, rights and 
privileges in, over or affecting lands.” The right thus recognized, how¬ 
ever, is not a title in the soil below high-water mark, nor a right to build 
thereon, but a right of access only, analogous to that of an abutter upon 
a highway: Buccleuch v. Metropolitan Board of Works, L. R., 5 H. L., 
418; Lyon v. Fishmongers Co., 1 App. Cas., 662. “That decision,” 
said Lord Selborne, “must be applicable to every country in which the 
same general law of riparian rights prevails, unless excluded by some 
positive rule or binding authority of the lex loci:" North Shore Railway 
v. Pion, 14 App. Cas., 612, 620, affirming 14 Canada Sup. Ct., 677. 

II. The common law of England upon this subject, at the time of the 
emigration of our ancestors, is the law of this country, except so far as it 
has been modified by the characters, constitutions, statutes or usages of 
the several Colonies and States, or by the Constitution and laws of the 
United States. 

The English possessions in America were claimed by the right of dis¬ 
covery. Having been discovered by subjects of the King of England, 
and taken possession of in his name, by his authority or with his assent, 
they were held by the King as the representative of and in trust for the 
nation; and all vacant lands, and the exclusive power to grant them, 
were vested in him. The various charters granted by different mon- 
archs of the Stuart dynasty for large tracts of territory on the Atlantic 
coast conveyed to the grantees both the territory described and the pow- 


49 


ers of government, including the property and the dominion of lands 
under tide waters. And upon the American Revolution, all the rights of 
the Crown and of Parliament vested in the several States, subject to the 
rights surrendered to the national government by the Constitution of the 
United States: Johnson v. McIntosh, 8 Wheat., 543, 595; Martin v. 
Waddell, 16 Pet., 367, 408-410, 414; Commonwealth v. Roxbury, 9 
Gray, 451, 478-481 ; Stevens v. Patterson & Newark Railroad, 5 Vroom 
(34 N. J. Law), 532; People v. New York & Staten Island Ferry, 68 
N. Y., 71. 

The leading case in this court, as to the title and dominion of tide 
waters and of the lands under them, is Martin v. Waddell (1842), 16 
Pet., 367, which arose in New Jersey, and was as follows: The charters 
granted by Charles II, in 1664 and 1674 to his brother the Duke of 
York (afterwards James II), included New York and New Jersey and 
the islands of Martha’s Vineyard and Nantucket, and conveyed to the 
Duke the territories therein described, “together with all the lands, 
islands, soils, rivers, harbors, mines, minerals, quarries, woods, marshes, 
waters, lakes, fishings, hawkings, huntings and fowling, and all other 
royalties, profits, commodities and hereditaments,” thereto belonging or 
appertaining, and all the “estate, right, title, interest, benefit, advantage, 
claim and demand” of the King, of, in or to the same; as well as full 
powers of government, provided, however, that all statutes, ordinances 
and proceedings should not be contrary to, but, as near as conveniently 
might be, agreeable to the laws, statutes and government of England. 
All these rights, both of property and government, in a part of those 
territories, were granted by the Duke of York to the Proprietors of East 
Jersey; and they, in 1702, surrendered to Queen Anne all “the powers, 
authorities and privileges of and concerning the government of” the 
Province, retaining their rights of private property : Learning and Spicer’s 
New Jersey Grants, 4, 5, 42, 43, 148, 149, 614, 615. An action of 
ejectment was brought in the Circuit Court of the United States for the 
District of New Jersey, for land under tide waters in Raritan Bay and 
River, to which the plaintiff claimed title under specific conveyances of 
that land from the Pioprietors of East Jersey, and of which the defend¬ 
ants were in possession, for the purpose of planting and growing oysters, 
under a statute passed by the legislature of the State of New Jersey 
in 1824. 

This court, following, though not resting wholly upon, the decision 
of the Supreme Court of New Jersey in Arnold v. Mundy, 1 Halsted 
(6 N. J. Law), 1, gave judgment for the defendants, for reasons assigned 
in thp opinion delivered by Chief Justice Taney, which can not be better 


50 


summed up than in his own words: T he country mentioned in the 
letters patent was held by the King in his public and regal character as 
the representative of the nation, and in trust for them : 16 Pet., 409. 

By those charters, in view of the principles stated by Lord Hale, in the 
passage above quoted, concerning the right of fishing, the dominion and 
propriety in the navigable waters, and in the soils under them, passed, as 
a part of the prerogative rights annexed to the political powers conferred 
on the Duke;” and “in his hands they were intended to be a trust for 
the common use of the new community about to be established a 
public trust for the benefit of the whole community, to be freely used by 
all for navigation and fishery, as well for shell fish as floating fish and 
not as “ private property, to be parcelled out and sold by the Duke for 
his own individual emolument.” “And in the judgment of the court, 
the lands under the navigable waters passed to the grantee as one of the 
royalties incident to the powers of government; and were to be held by 
him in the same manner and for the same purposes that the navigable 
waters of England, and the soils under them, are held by the Crown: 
pp. 411-413. The surrender by the proprietors in 1702 restored to the 
Crown all “its ordinary and well-known prerogatives,” including the 
great right of dominion and ownership in the rivers, bays and arms of the 
sea, and the soils under them,” * * “in the same plight and condition in 
which they originally came to the hands of the Duke of York:” p. 416. 
“When the Revolution took place, the people of each State became 
themselves sovereign; and in that character hold the absolute right to all 
their navigable waters, and the soils under them, for their own common 
use, subject only to the fights since surrendered by the Constitution to 
the general government:” p. 410. 

It was in giving the reasons for holding that the royal charters did 
not sever the soil under navigable waters, and the public right of fishing, 
from the powers of government, and in speaking of the effect which 
grants of the title in the sea shore to others than the owner of the upland 
might have, not upon any peculiar rights supposed to be incident to his 
ownership, but upon the public and common rights in, and the benefits 
and advantages of, the navigable waters, which the colonists enjoyed “for 
the same purposes, and to the same extent, that 'they had been used and 
enjoyed for centuries in England,” and which every owner of the upland 
therefore had in common with all other persons, that Chief Justice 
Taney, in the passage relied on by the plaintiff in error, observed: “In¬ 
deed, it could not well have been otherwise; for the men who first 
formed English settlements could not have been expected to encounter 
the many hardships that unavoidably attended their emigration to the New 


51 


World, and to people the banks of its bays and rivers, if the land under 
the water at their very doors was liable to immediate appropriation by 
another, as private property; and the settler upon the fast land thereby 
excluded from its enjoyment, and unable to take a shell fish from its 
bottom, or fasten there a stake, or even bathe in its waters, without becom¬ 
ing a trespasser upon the rights of another:” 16 Pet., 414. 

The full extent of that decision may be more clearly appreciated by 
referring to the dissenting opinion of Mr. Justice Thompson in that case, 
and to the unanimous judgment of the court in the subsequent case of 
Den. v. Jersey Co. (1853), 15 How., 426. 

In Martin v. Waddell, Mr. Justice Thompson unavailingly contended 
that the title in the lands under the navigable tide water, the jus privatum , 
as distinguished from the jus publicum, passed as private property from 
the King to the Duke, and from him to the Proprietors of East Jersey, 
and was unaffected by their surrender to Queen Anne, and therefore 
passed from them to the plaintiff, subject indeed to the public rights of 
navigation, passing and repassing, and perhaps of fishery for floating fish, 
but not to the right of planting, growing and dredging oysters; and also 
that, if the King held this land as trustee for the common benefit of all 
his subjects, and inalienable as private property, the State of New Jersey, 
on succeeding to its rights at the Revolution, could not hold it discharged 
of the trust, and dispose of it to the private and exclusive use of indi¬ 
viduals: 16 Pet., 418-434. 

In Den. v. Jersey Co., which was ejectment for land under tide water, 
that had been reclaimed and occupied as building lots by a corporation, 
pursuant to an act of the legislature of the State of New Jersey, the 
plaintiff, claiming under a conveyance from the Proprietors of East 
Jersey, contended that the fee of the soil under the navigable waters of 
that part of the State was conveyed to the Proprietors as private property, 
subject to the public use; that the public use having ceased as to the land 
in question, they were entitled to the exclusive possession, and that noth¬ 
ing but the right of fishery was decided in Martin v. Waddell. But the 
court, again speaking by Chief Justice Taney, held that the decision in 
Martin v. Waddell, being in ejectment, necessarily determined the title 
to the soil, and governed this case; and therefore gave judgment for the 
grantee of the State, and against the claimant under the Proprietors: 15 
How., 432, 433. 

III. The governments of the several Colonies, with a view to induce 
persons to erect wharves for the benefit of navigation and commerce, 
early allowed to the owners of lands bounding on tide waters greater 
rights and privileges in the shore below high-water mark than they 


52 


had in England. But the nature and degree of such rights and privileges 
differed in the different Colonies, and in some were created by statute, 
while in others they rested upon usage only. 

In Massachusetts, by virtue of an ancient colonial enactment, com¬ 
monly called the Ordinance of 1641, but really passed in 1647, and re¬ 
maining in force to this day, the title of the owner of land bounded by 
tide water extends from high-water mark over the shore or flats to low- 
water mark, if not beyond 100 rods. The private right thus created in 
the flats is not a mere easement, but a title in fee, which will support a 
real action, or an action of trespass quare clausum fregit, and which may 
be conveyed by its owner with or without the upland; and which he 
may build upon or enclose, provided he does not impede the public right 
of way over it for boats and vessels. But his title is subject to the public 
rights of navigation and fishery; and therefore, so long a? the flats have 
not been built upon or enclosed, those public rights are not restricted 
or abridged; and the State, in the exercise of its sovereign power of police 
for the protection of harbors and the promotion of commerce, may, with¬ 
out making compensation to the owners of the flats, establish harbor lines 
over those flats, beyond which wharves shall not thereafter be built, even 
when there would be no actual injury to navigation: Mass. Colony Laws 
(ed. 1660), 50; (ed. 1872), 90, 91; Boston v. Lecraw, 17 How., 426, 
432, 433; Richardson v. Boston, 19 How., 263, and 24 How., 188; 
Commonwealth v. Alger, 7 Cush , 53, 67-81. It is because of the or¬ 
dinance vesting the title in fee of the flats in the owner of the upland, 
that a conveyance of his land bounding on the tide water, by whatever 
name, whether “sea,” “bay,” ‘‘harbor” or “river,” has been held to in¬ 
clude the land below high-water mark as far as the grantor owns : Boston 
v. Richardson, 13 Allen, 146, 155, and 105 Mass., 351, 355, and cases 
cited. As declared by Chief Justice Shaw, grants by the Colony of 
Massachusetts, before the ordinance, of lands bounded by tide water did 
not include any land below high-water mark: Commonwealth v. Alger, 
7 Cush., 53, 66; Commonwealth v. Roxbury, 9 Gray, 451, 491-493. 
See also Litchfield v. Scituate, 136 Mass., 39. The decision in Man¬ 
chester v. Massachusetts, 139 U. S., 240, affirming 152 Mass., 230, up¬ 
held the jurisdiction of the State and its authority to regulate fisheries, 
within a marine league from the coast. 

The rule of principle of the Massachusetts ordinance has been adopted 
and practiced on in Plymouth, Maine, Nantucket and Martha’s Vine¬ 
yard, since their union with the Massachusetts Colony under the Massa 
chusetts Province Charter of 1692: Commonwealth v. Alger, 7 Cush., 
53, 76, and other authorities collected in 9 Gray, 523. 


53 


In New Hampshire, a right in the shore has been recognized to belong 
to the owner of the adjoining upland, either by reason of its having once 
been under the jurisdiction of Massachusetts, or by early and continued 
usage: Nudd v. Hobbs, 17 N. H., 524, 526; Clement v. Burns, 43 N. 
H., 609, 621; Concord Co. v. Robertson, 66 N. H., 1, 26, 27. 

In Rhode Island, the owners of land on tide water have no title below 
high-water mark; but by long usage, apparently sanctioned by a colonial 
statute of 1/07, they have been accorded the right to build wharves or 
other structures upon the flats in front of their lands, provided they do 
not impede navigation, and have not been prohibited by the legislature; 
and they may recover damages against one who, without authority from 
the legislature, fills up such flats so as to impair that right: Angell on 
4 ide Waters (2d ed.), 236, 237; Folsom v. Freeborn, 13 R. I., 200, 204, 
210. It would seem, however, that the owner of the upland has no right 
of action against any one filling up the flats by an authority of the State 
for any public purpose: Gerhard v. Seekonk Commissioners, 15 R. I., 
334; Clark v. Providence, 16 R. I., 337. 

In Connecticut, also, the title in the land below high-water mark is in 
the State. But by ancient usage, without any early legislation, the pro¬ 
prietor of the upland has the sole right, in the nature of a franchise, to 
wharf out and occupy the flats, even below low-water mark, provided he 
does not interfere with navigation; and this right may be conveyed sepa¬ 
rately from the upland ; and the fee in flats so reclaimed vests in him: 
Ladies’ Seamen’s Friend Society v. Halstead, 58 Conn., 144, 150-152; 
Prior v. Swartz, 62 Conn., 132, 136-138. The exercise of this right is 
subject to all the regulations the State may see fit to impose, by authoriz¬ 
ing commissioners to establish harbor lines, or otherwise: State v. Sargent, 
45 Conn., 358. But it has been intimated that it can not be appropriated 
by the State to a different public use, without compensation: Farist Co. 
v. Bridgport, 60 Conn., 278. 

In New York it was long considered as settled law that the State suc¬ 
ceeded to all the rights of the Crown and Parliament of England in lands 
under tide waters, and that the owner of land bounded by a navigable 
river within the ebb and flow of the tide had no private title or right in 
the shore below high-water mark, and was entitled to no compensation 
for the construction, under a grant from the legislature of the State, of a 
railroad along the shore between high and low water mark, cutting off all 
access from his land to the river, except across the railroad : Lansing v. 
Smith, 4 Wend., 9, 21; Gould v. Hudson River Railroad, 6 N. Y., 522; 
People v. Tibbetts, 19 N. Y., 523, 528; People v. Canal Appraisers, 33 
N. Y., 461, 467; Langdon v. New York, 93 N. Y., 129, 144, 154-156; 


54 


New York v. Hart, 95 N. Y., 443, 450, 451, 457; In re Staten Island 
Rapid Transit Co., 103 N. Y., 251, 260. The owner of the upland has 
no right to wharf out, without legislative authority; and titles granted in 
lands under tide water are subject to the right of the State to establish 
harbor lines: People v. Vanderbilt, 26 N. Y., 287, and 28 N. Y., 396; 
People v. New York & Staten Island Ferry, 68 N. Y., 71. The law of 
that State, as formerly understood, has been recently so far modified as to 
hold—in accordance with the decision in Buccleuch v. Metropolitan 
Board of Works, L. R. 5 H. L., 418, and contrary to the decisions in 
Gould v. Hudson River Railroad, above cited, and in Stevens v. Paterson 
& Newark Railroad, 5 Vroom (34 N. J. Law), 532—that the owner of 
land bounded by tide water may maintain an action against a railroad cor¬ 
poration constructing its road by authority of the legislature so as to cut 
off his access to the water: Williams v. New York, 105 N. Y., 419, 436; 
Kane v. New York Elevated Railroad, 125 N. Y., 164, 184; Rumsey v. 
New York & New England Railroad, 133 N. Y., 79, and 136 N. Y., 543. 

The law of New Jersey upon this subject was recognized and clearly 
stated in a recent judgment of this court, in which a grant by commis¬ 
sioners under a statute of the State to a railroad corporation, of a tract of 
land below high-water mark, was held to preclude a city from continuing 
over the flats a highway dedicated to the public by the owner of the up¬ 
land. “ In the examination of the effect to be given to the riparian laws 
of the State of New Jersey,” said Mr. Justice Matthews, Speaking for the 
court, “it is to be borne in mind that the lands below high-water mark, 
constituting the shores and submerged lands of the navigable waters of the 
State, were, according to its laws, the property of the State as sovereign. 
Over these lands it had absolute and exclusive dominion, including the 
right to appropriate them to such uses as might best serve its views of the 
public interest, subject to the power conferred by the Constitution upon 
Congress to regulate foreign and interstate commerce. The object of the 
legislation in question was evidently to define the relative rights of the 
State, representing the public sovereignty and interests, and of the owners 
of land bounded by high-water mark.” “The nature of the title in the 
State to lands under tide water was thoroughly considered by the Court 
of Errors and Appeals of New Jersey in the case of Stevens v. Paterson & 
Newark Railroad, 5 Vroom (34 N. J. Law), 532. It was there declared 
(p. 549) ‘that all navigable waters within the territorial limits of the State, 
and the soil under such waters, belong in actual propriety to the public; 
that the riparian owner, by the common law, has no peculiar rights in this 
public domain as incidents of his estate; and that the privileges he pos¬ 
sesses by the local custom or by force of the wharf act, to acquire such 


55 


rights, can, before possession has been taken, be regulated or revoked at 
the will of the legislature. The result is that there is no legal obstacle to 
a grant by the legislature to the defendants of that part of the property of 
the public which lies in front of the lands of the plaintiff, and which is 
below high-water mark. It was therefore held, in that case, that it was 
competent for the legislative power of the State to grant to a stranger 
lands constituting the shore of a navigable river under tide water, below 
high-water mark, to be occupied and used with structures and improve¬ 
ments in such a manner as to cut off the access of the riparian owner from 
his land to the water, and that without making compensation to him for 
such loss:” Hoboken v. Pennsylvania Railroad (1887), 124 U. S., 656, 
688, 690, 691. 

The arguments on both sides of that proposition, upon general princi¬ 
ples, as well as under the law of New Jersey, are nowhere more strongly 
and fully stated than by Chief Justice Beasley, delivering the opinion of 
the majority of the court, and by Chancellor Zabriskie, speaking for the 
dissenting judges, in Stevens v. Paterson & Newark Railroad, above cited, 
decided in 1870. Two years later, Chancellor Zabriskie recognized it as 
settled by that case, u that the lands under water, including the shore on 
the tide waters of New Jersey, belong absolutely to the State, which has 
the power to grant them to any one, free from any right of the riparian 
owner in them:” Pennsylvania Railroad v. New York & Long Branch 
Railroad, 8 C. E. Green (23 N. J. Eq.), 157, 159. See, also, New York, 
&c., Railroad v. Yard, 14 Vroom (43 N. J. Law), 632, 636; American 
Dock Co. v. Trustees of Public Schools, 12 Stewart (39 N. J. Eq.), 
409,' 445. 

In Pennsylvania, likewise, upon the Revolution, the State succeeded to 
the rights, both of the Crown and of the proprietors, in the navigable 
waters and the soil under them: Rundle v. Delaware & Raritan Canal, 
14 How., 80, 90; Gilman v. Philadelphia, 3 Wall., 713, 726. But by 
the established law of the State, the owner of lands bounded by navigable 
water has the title in the soil between high and low water mark, subject 
to the public right of navigation, and to the authority of the legislature to 
make public improvements upon it, and to regulate his use of it: Tini- 
cum Co. v. Carter, 61 Penn. St., 21, 30, 31; Wainwright v. McCul¬ 
lough, 63 Penn. St., 66, 74; Zug v. Commonwealth, 70 Penn. St., 138; 
Philadelphia v. Scott, 81 Penn. St., 80, 86; Wall v. Pittsburgh Harbor 
Co., 152 Penn. St., 427. 

In Delaware, as has been declared by its Supreme Court, “ all navigable 
rivers within the State belong to the State, not merely in right of eminent 
domain, but in actual propriety:” Bailey v. Philadelphia, Wilmington & 


56 


Baltimore Railroad, 4 Harrington (Del.), 389, 395. -And see Willson v. 
Blackbird Creek Co., 2 Pet., 245, 251. 

In Maryland the owner of land bounded by tide water is authorized, 
according to various statutes beginning in 1745, to build wharves or other 
improvements upon the flats in front of his land, and to acquire a right in 
the land so improved : Casey v. Inloes, 1 Gill, 430; Baltimore v. McKim, 
3 Bland, 453; Goodsell v. Lawson, 42 Maryland, 348; Garitee v. Balti¬ 
more, 53 Maryland, 422; Horner v. Pleasants, 66 Maryland, 475; Po¬ 
tomac Steamboat Co. v. Upper Potomac Steamboat Co., 109 U. S., 672, 
675, 684, in which the question was who was the riparian owner, and as 
such entitled to wharf out into the Potomac River in the District of 
Columbia under the authority to do so expressly conferred under the laws 
of Maryland in force in the District. This court, speaking by Mr. Justice 
Curtis, in affirming the right of the State of Maryland to protect the oyster 
fishery within its boundaries, said : ‘‘Whatever soil below low-water mark 
is the subject of exclusive propriety and ownership belongs to the State on 
whose maritime border and within whose territory it lies, subject to any 
lawful grants of that soil by the State, or the sovereign power which gov¬ 
erned its territory before the Declaration of Independence. But this soil 
is held by the State, not only subject to, but^ in some sense in trust for, 
the enjoyment of certain public rights, among which is the common lib¬ 
erty of taking fish, as well shell fish as floating fish Smith v. Maryland, 
18 How., 71, 74. 

The State of Virginia was held by this court, upon like grounds, to 
have the right to prohibit persons not citizens of the State from planting 
oysters in the soil covered by tide waters within the State, Chief Justice 
Waite saying: “The principle has long been settled in this court, that 
each State owns the beds of all tide waters within its jurisdiction, unless 
they have been granted away. In like manner, the States own the tide 
waters themselves, and the fish in them, so far as they are capable of own¬ 
ership while running. For this purpose the State represents its people, 
and the ownership is that of the people in their united sovereignty. The 
title thus held is subject to the paramount right of navigation, the regula¬ 
tion of which, in respect to foreign and interstate commerce, has been 
granted to the United StatesMcCready v. Virginia, 94 U. S., 391, 394. 
In Virginia, by virtue of statutes beginning in 1679, the owner of land 
bounded by tide water has the title to ordinary low-water mark, and the 
right to build wharves, provided they do not obstruct navigation : 5 Opin¬ 
ions of Attorneys General, 412, 435-440; French v. Bankhead, 11 Grat¬ 
tan, 136, 159-161; Hardy v. McCullough, 23 Grattan, 251, 262; Norfolk 
v. Cooke, 27 Grattan, 430, 434, 435; Garrison v. Hall, 75 Virginia, 150. 



57 


In North Carolina, when not otherwise provided by statute, the private 
ownership of land bounded by navigable waters stops at high-water mark, 
and the land between high and low water mark belongs to the State and 
may be granted by it: Hatfield v. Grimstead, 7 Iredell, 139; Lewis v. 
Keeling, 1 Jones (No. Car.), 299, 306. The statutes of that State, at dif¬ 
ferent periods, have either limited grants of land, bounded on navigable 
waters, to high-water mark, or have permitted owners of the shore to 
make entries of the land in front, as far as deep water, for the purpose of 
a wharf; and any owner of the shore appears to have the right to wharf 
out, subject to such regulations as the legislature may prescribe for the 
protection of the public rights of navigation and fishery: Wilson v.* 
Forbes, 2 Dev., 30; Collins v. Benbury, 3 Iredell, 277, and 5 Iredell, 
118; Gregory v. Forbes, 96 No. Car., 77; State v. Narrows Island Club, 
100 No. Car., 477; Bond v. Wool, 107 No. Car., 139. 

In South Carolina the rules of the common law, by which the title 
in the land under tide wateis is in the State, and a grant of land 
bounded by such waters passes no title below high-water mark, ap¬ 
pears to be still in force: State v. Pacific Guano Co., 22 So. Car., 
50; State v. Pinckney, 22 So. Car., 484. 

In Georgia, also, the rules of the common law would seem to be in 
force as to tide waters, except as affected by the statutes of the State 
providing that "the right of the owner of lands adjacent to navigable 
streams extends to low-water mark in the bed of the stream:” Georgia 
Code of 1882, 962, 2229, 2230; Howard v. Ingersoll, 13 How., 381, 
411, 421; Alabama v. Georgia, 23 How., 505; Savannah v. State, 4 
Georgia, 26, 39; Young v. Harrison, 6 Georgia, 130, 141. 

The foregoing summary of the laws of the original States shows 
that there is no universal and uniform law upon the subject; but that 
each State has dealt with the lands under the tide waters within its 
borders according to its own views of justice and policy, reserving its 
own control over such lands, or granting rights therein to individuals 
or corporations, whether owners of the adjoining upland or not, as it 
considered for the best interests of the public. Great caution, there¬ 
fore, is necessary in applying precedents in one State to cases arising 
in another. 

IV. The new States admitted into the Union since the adoption 
of the Constitution have the same rights as the original States in the 
tide waters, and in the lands below the high-water mark, within their 
respective jurisdictions. 

The act of 1783 and the deed of 1784, by which the State of Vir¬ 
ginia, before the adoption of the Constitution, ceded "unto the 


58 


United States in Congress assembled, for the benefit of the said 
States, all right, title and claim, as well of soil as jurisdiction, to 
the Northwest Territory, and the similar cession by the State of 
Georgia to the United States in 1802 of territory including great part 
of Alabama and of Mississippi, each provided that the territory so 
ceded should be formed into States, to be admitted, on attaining a 
certain population, into the Union (in the words of the Virginia 
cession), ’'having the same rights of sovereignty, freedom and inde¬ 
pendence as the other States,” or (in the words of the Ordinance of 
Congress of July 13, 1787, for the government of the Northwest Ter¬ 
ritory, adopted in the Georgia cession) "on an equal footing with 
the original States in all respects whatever;” and that "all the lands 
within” the territory so ceded to the United States, and not re¬ 
served or appropriated for other purposes, should be considered as a 
common fund for the use and benefit of the United States: Charters 
and Constitutions, 427, 428, 432, 433; Clayton’s Laws of Georgia, 
pp. 48-51; Acts of Congress of April 7, 1798, c. 28; 1 Stat., 549; May 
10, 1800, c. 50, and March 3, 1803, c. 27; 2 Stat., 69, 229; Pollard 
v. Hagan, 3 How., 212, 221, 222. 

In Pollard v. Hagan (1844), this court, upon full consideration 
(overruling anything to the contrary in Pollard v. Kibbe, 14 Pet., 
353; Mobile v. Eslava, 16 Pet., 234; Mobile v. Hallett, 16 Pet., 261; 
Mobile v. Emanuel, 1 How., 95; and Pollard v. Files, 2 How., 591), 
adjudged that upon the admission of the State of Alabama into the 
Union, the title in the lands below high-water mark of navigable 
waters passed to the State, and could not afterwards be granted away 
by the Congress of the United States. Mr. Justice McKinley, deliv¬ 
ering the opinion of the court (Mr. Justice Catron alone dissenting), 
said: "We think a proper examination of this subject will show, that 
the United States never held any municipal sovereignty, jurisdiction 
or right of soil, in and to the territory of which Alabama or any of 
the new States were, formed, except for temporary purposes, and to 
execute the trusts created by the acts of the Virginia and Georgia 
legislatures, and the deeds of cession executed by them to the United 
States, and the trust created by the treaty with the French Republic 
of the 30th of April, 1803, ceding Louisiana.” * * "When the United 
States accepted the cession of the territory, they took upon themselves 
the trust to hold the municipal eminent domain for the new States, 
and to invest them with it to the same extent, in all respects, that it 
was held by the States ceding the territories.” * * "When Alabama 
was admitted into the Union, on an equal footing with the original 


59 


States, she succeeded to all the rights of sovereignty, jurisdiction and 
eminent domain, which Georgia possessed at the date of the cession, 
except so far as this right was diminished by the public lands remain¬ 
ing in the possession and under the control of the United States, for 
the temporary purposes provided for in the deed of cession and the 
legislative acts connected with it. Nothing remained to the United 
States, according to the terms of the agreement, but the public lands:” 
3 How., 221-223. "Alabama is therefore entitled to the sovereignty 
and jurisdiction over all the territory within her limits, subject to 
the common law, to the same extent that Georgia possessed it before 
she ceded it to the United States. To maintain any other doctrine 
is to deny that Alabama has been admitted into the Union on an 
equal footing with the original States, the Constitution, laws and 
compact to the contrary notwithstanding. ” * * "Then to Alabama be¬ 
long the navigable waters, and soils under them, in controversy in this 
case, subject to the rights surrendered by the Constitution to the 
United States:” 3 How., 228, 229. 

So much of the reasoning of the learned justice, as implied that the 
title in the land below high-water mark could not have been granted 
away by the United States after the deed of cession of the territory 
and before the admission of the State into the Union, was not neces¬ 
sary to the decision, which involved only a grant made by Congress 
after the admission of Alabama, and which was followed in two sim¬ 
ilar cases in which Congress, after the admission of the State, had 
undertaken to confirm Spanish grants, made after the Treaty of San 
Ildefonso of 1800, and therefore passing no title whatever: Goodtitle 
v. Kibbe (1850), 9 How.. 471; Hallett v. Beebe (1851), 13 How., 
25. In the first of these cases, Chief Justice Taney, speaking for the 
whole court, of which Mr. Justice McKinley was still a member, 
said: "Undoubtedly Congress might have granted this land to the 
patentee, or confirmed his Spanish grant, before Alabama became a 
State. But this was not done. And the existence of this imperfect 
and inoperative Spanish grant could not enlarge the power of the 
United States over the place in question after Alabama became a 
State, nor authorize the general government to grant or confirm a title 
to land when the sovereignty and dominion over it had become vested 
in the State:” 9 How., 478. 

V. That these decisions do not, as contended by the learned coun¬ 
sel for the plaintiff in error, rest solely upon the terms of the deed of 
cession from the State of Georgia to the United States clearly ap¬ 
pears from the constant recognition of the same doctrine as applicable 


60 


to California, which was acquired from Mexico by the Treaty of 
Guadalupe Hidalgo of 1848: 9 Stat., 926; United States v. Pacheco 
(1864), 2 Wall., 587; Mumford v. Wardwell (1867), 6 Wall., 423; 
Weber v. Harbor Commissioners (1874), 18 Wall., 57; Packer v. 
Bird (1891), 137 U. S., 661, 666; San Francisco v. Le Roy (1891), 
138 U. S., 656, 671; Knight v. United States Land Association (1891), 
142 U. S., 161. 

In United States v. Pacheco, it was decided that a grant from the 
Mexican government, confirmed by a decree of a court of the United 
States under authority of Congress, of land bounded "by the bay of 
San Francisco, did not include land below ordinary high-water mark 
of the bay; because, as was said by Mr. Justice Field, in delivering 
judgment, "By the common law, the shore of the sea, and, of course, 
of arms of the sea, is the land between ordinary high and low water 
mark, the land over which daily tides ebb and flow. When, there¬ 
fore, the sea, or a bay, is named as a boundary, the line of ordinary 
high-water mark is always intended where the common law prevails. 
And there is nothing in the language of the decree which requires 
the adoption of any other rule in the present case. If reference be 
had to the rule of the civil law, because the bay is given as a bound¬ 
ary in the grant from the Mexican government, the result will be 
equally against the position of the appellants:" 2 Wall., 590. 

The State of California was admitted into the Union in 1850, and 
within a year afterwards passed statutes, declaring that a certain line 
designated upon a recorded plan should "be and remain a permanent 
water front" of the city of San Francisco; reserving to the State "its 
right to regulate the construction of wharves or other improvements, 
so that they shall not interfere with the shipping and commercial in¬ 
terests of the bay and harbor;" and providing that the city might 
construct wharves at the end of all the streets commencing with the 
bay, not exceeding 200 yards beyond that line, and that the spaces 
beyond, between the wharves, should remain free from obstructions 
and be used as public slips. In Weber v. Harbor Commissioners, it 
was held that a person afterwards acquiring the title of the city in a 
lot and wharf below high-water mark had no right to complain of 
works constructed by commissioners of the State, under authority of 
the legislature, for the protection of the harbor and the convenience 
of shipping, in front of his wharf, and preventing the approach of 
vessels to it; and Mr. Justice Field, in delivering judgment, said: 
"Although the title to the soil under the tide waters of the bay was 
acquired by the United States by cession from Mexico, equally with 


61 


the title to the upland, they held it only in trust for the future State. 
Upon the admission of California into the Union upon equal footing 
with the original States, absolute property in, and dominion and sov¬ 
ereignty over, all soils under the tide waters within her limits passed 
to the State, with the consequent right to dispose of the title to any 
part of said soils in such manner as she might deem proper, subject 
only to the paramount right of navigation over the waters, so far as 
such navigation might be required by the necessities of commerce 
'with foreign nations or among the several States, the regulation of 
which was vested in the general government:” 18 Wall., 65, 66. 

In the very recent case of Knight v. United States Land Associa¬ 
tion, Mr. Justice Lamar, in delivering judgment, said: "It is the 
settled rule of law in this court that absolute property in, and dominion 
and sovereignty over, the soils under the tide waters in the original 
States were reserved to the several States; and that the new States 
since admitted have the same rights, sovereignty and jurisdiction in 
that behalf, as the original States possess within their respective bor¬ 
ders. Upon the acquisition of the territory from Mexico, the United 
States acquired the title to tide lands, equally with the title to upland; 
but with respect to the former they held it only in trust for the future 
States that might be erected out of such territory:” 142 U. S., 183. 
In support of these propositions he referred to Martin v. Waddell, 
Pollard v. Hagan, Mumford v. Wardwell, and Weber v. Harbor Com¬ 
missioners, above cited. 

In that case it was further held, as it had previously been declared 
in San Francisco v. Le Roy, above cited, that "this doctrine does not 
apply to lands that had been previously granted to other parties by the 
former government, or subjected to trusts which would require their 
disposition in some other way;” and that when the United States 
acquired California from Mexico by the treaty, they were bound by 
its stipulations, and by the principles of international law, to protect 
all rights of property acquired under previous lawful grants from the 
Mexican government: 142 U. S'., 183, 184. And it was therefore 
adjudged that under a boundary "by the bay,” in the Mexican grant 
of the pueblo of San Francisco, duly confirmed by a decree of a court 
of the United States, and defined by a survey under the authority of 
the Secretary of the Interior as following the general line of high- 
water mark of the bay, crossing the mouth of a tide-water creek, the 
title of lands inside of that line, although below high-water mark of 
the creek, was included, and therefore did not pass by a deed from 
the State. 


62 


VI. The decisions of this court, referred to at the bar, regarding 
the shores of waters where the ebb and flow of the tide from the sea 
is not felt, but which are really navigable, should be considered with 
reference to the facts upon which they were made, and keeping in 
mind the local laws of the different States, as well as the provisions 
of the acts of Congress relating to such waters. 

By the law of England, Scotland and Ireland, the owners of the 
banks prima facie own the beds of all fresh-water rivers above the ebb 
and flow of the tide, even if actually navigable, to the thread of the 
stream, usque ad filum aquae: Cord Hale, in Hargrave’s Law Tracts, 
5; Bickett v. Morris, L. R., 1 H. L. Sc., 47; Murphy v. Ryan, Ir. 
R., 2 C. L., 143; Orr Ewing v. Colquhoun, 2 App. Cas., 839. 

The rule of the common law on this point appears to have been 
followed in all the original States—except in Pennsvlvania, Virginia, 
and North Carolina, and except as to great rivers, such as the Hud¬ 
son, the Mohawk and the St. Lawrence in New York—as well as in 
Ohio, Illinois, Michigan, and Wisconsin. But it has been wholly 
rejected, as to rivers navigable in fact, in Pennsylvania, Virginia, 
and North Carolina, and in most of the new States. For a full col¬ 
lection and careful analysis of the cases, see Gould on Waters (2d ed.), 

56-78. 

The earliest judicial statement of the now prevailing doctrine in 
this country as to the title in the soil of rivers really navigable, al¬ 
though above the ebb and flow of the tide, is to be found in a case 
involving the claim of a riparian proprietor to an exclusive fishery in 
the Susquehanna River, in which Chief Justice Tilghman, in 1807, 
after observing that the rule of the common law upon the subject had 
not been adopted in Pennsylvania, said: "The common law principle 
is, in fact, that the owners of the banks have no right to the water 
of navigable rivers. Now the Susquehanna is a navigable river, and 
therefore the owners of its banks have no such right. It is said, how¬ 
ever, that some of the cases assert that by navigable rivers are meant 
rivers in which there is no flow or reflow of the tide. This defini¬ 
tion may be very proper in England, where there is no river of con¬ 
siderable importance as to navigation which has not a flow of the 
tide, but it would be highly unreasonable when applied to our large 
rivers, such as the Ohio, Allegheny, Delaware, Schuylkill, or Susque¬ 
hanna and its branches:’’ Carson v. Blazer, 2 Binney, 475, 477, 478. 

It was because of this difference in the law of Pennsylvania from 
that of England and most of the older States, and because the deci¬ 
sions of the Supreme Court of Pennsylvania upon the subject were 


63 


deemed binding precedents, that this court, speaking by Mr. Justice 
Grier, held that riparian owners, erecting damson navigable rivers in 
Pennsylvania, did so only by license from the State, revocable at its 
pleasure, and could therefore claim no compensation for injuries 
caused to such dams by subsequent improvements under authority of 
the State for the convenience of navigation; and also that by the law 
of Pennsylvania pre-emption rights to islands in such rivers could not 
be obtained by settlement: Rundle v. Delaware & Raritan Canal 
(1852), 14 How., 80, 91, 93, 94; Fisher v. Haldeman (1857), 20 
How., 186, 194. 

By the acts of Congress for the sale of the public lands, those lands 
are to be divided into townships, 6 miles square, unless the line of an 
Indian reservation, or of land previously surveyed and patented, or 
"the course of navigable rivers, may render it impracticable, " and 
into sections and quarter sections, bounded by north and south and 
east and west lines, running to the corners, or, when the corners can not 
be fixed, then, "to the watercourse," * * "or other external bound¬ 
ary;" and it is provided "that all navigable rivers within the territory 
to be disposed of by virtue of this act shall be deemed to be and re¬ 
main public highways; and that in all cases where the opposite banks 
of any stream not navigable shall belong to different persons, the 
stream and the bed thereof shall be common to both:" Acts of May 
18, 1796, c. 29, 2, 9; 1 Stat., 464; May 10, 1800, c. 55, 3; March 3, 
1803, c. 27, 17; March 26, 1804, c. 35, 6; February 11, 1805, c. 14; 
2 Stat., 73, 235, 279, 313; Rev. Stat., 2395, 2396, 2476. 

Those acts also provide that when, in the opinion of the President, 
"a departure from the ordinary method of surveying land on any river, 
lake, bayou or watercourse, would promote the public interest," the 
land may be surveyed and sold in tracts of 2 acres in width, fronting 
on any such water, and running back the depth of 40.acres: Act of 
May 24, 1844, c. 141; 4 Stat., 34; Rev. Stat., 2407. 

By the Ordinance of 1787 for the government of the Northwest 
Territory, "the navigable waters leading into the Mississippi and St. 
Lawrence, and the carrying places between the same, shall be com¬ 
mon highways, and forever free, as well to the inhabitants of the said 
Territory as to the citizens of the United States, and those of any 
other States that may be admitted into the confederacy:" Charters 
and Constitutions, 432; Act of August 7, 1789, c. 8; 1 Stat., 50. 
And the acts relating to the Territories of Louisiana and Missouri 
contained similar provisions: Acts of March 3, 1811, c. 46, 12; June 4, 
1812, c. 95; 15; 2 Stat., 666, 747. 


64 


In the acts for the admission of the States of Louisiana and Missis¬ 
sippi into the Union, it was likewise declared that ''the river Missis¬ 
sippi, and the navigable rivers and waters leading into the same, or 
into the Gulf of Mexico, shall be common highways, and forever free, 
as well to the inhabitants of the said State, as to other citizens of the 
United States:” Acts of February 20, 1811, c. 21, 3; April 8, 1812, 
c. 50, 1; 2 Stat., 642, 703; March 1, 1817, c. 23, 4; 3 Stat., 349. 

In Withers v. Buckley (1857), 20 How., 84, this court, affirming the 
judgment of the highest court of Mississippi in 29 Mississippi, 21, held 
that this did not prevent the legislature of the State from improving by a 
canal the navigation of one of those navigable rivers, and thereby divert¬ 
ing without compensation the flow of water by the plaintiff’s land; and 
Mr. Justice Daniel, in delivering judgment, said : “It can not be imputed 
to Congress that they ever designed to forbid, or to withhold from the State 
of Mississippi, the power of improving the interior of that State, by 
means either of roads or canals, or by regulating the rivers within its 
territorial limits, although a plan of improvement to be adopted might 
embrace or affect the course or the flow of rivers situated within the in¬ 
terior of the State. Could such an intention be ascribed to Congress, the 
right to enforce it may be confidently denied. Clearly, Congress could 
exact of the new State the surrender of no attribute inherent in her 
character as a sovereign independent State, necessarily implied and 
guaranteed by the very nature of the Federal compact. Obviously, and 
it may be said primarily, among the incidents of that equality is the 
right to make improvements in the rivers, watercourses and highways, 
situated within the State:” 20 How., 93. See also Willamette Bridge 
Co. v. Hatch, 125 U. S., 1, 9-12; Monongahela Co. v. United States 
148 U. S., 312, 329-333. 

In the Genesee Chief (1851), 12 How., 443, in which this court, over¬ 
ruling its earlier decisions, held that the admiralty and maritime jurisdic¬ 
tion of the courts of the United States extended to all public navigable 
waters, although above the flow of the tide from the sea, Chief Justice 
Taney, taking the same line of argument as Chief Justice Tilghman in 
Carson v. Blazer, above cited, said that in England, where there were no 
navigable streams beyond the ebb and flow of the tide, the description of 
the admiralty jurisdiction as confined to tide waters was a reasonable and 
convenient one, and was equivalent to saying that it was confined to public 
navigable waters; but that, when the same description was used in this 
country, “the description of a public navigable river was substituted in 
the place of the thing intended to be described; and, under the natural 
influence of precedents and established forms, a definition originally cor- 



65 


rect was adhered to and acted on, after it had ceased, from a change in 
circumstances, to be the true description of public waters:” 12 How., 
454, 455. 

In Jones v. Soulard (1860), 24 How., 41, the decision was that a title 
acquired under the act of June 13, 1812, c. 99 (2 Stat., 748), to land in 
St. Louis, bounded by the Mississippi River, included an island west of 
the middle of the river, then only a sand bar, covered at ordinary high 
water and surrounded on all sides by navigable water, but which, after 
the admission of Missouri into the Union as a State, became, by the 
gradual filling up of the island and the intervening channel, connected 
with the shore as fast land. Mr. Justice Catron, indeed, in delivering 
the opinion, spoke of the rule of the common law, that “all grants of 
land bounded by fresh-water rivers, where the expressions designating the 
water line are general, confer the proprietorship on the grantee to the 
middle thread of the stream and entitle him to the accretions,” as a 
general and well-settled rule, and applicable to the Mississippi River: 24 
How., 65. But, as stated in that opinion, the charter of the city of St. 
Louis extended to the eastern boundary of the State of Missouri in the 
middle of the Mississippi River. By the law of Missouri, as theretofore 
declared by its Supreme Court, the title of lands bounded by the Missis¬ 
sippi River extended to low-water mark and included accretions: O’Fallon 
v. Price, 4 Missouri, 343; Shelton v. Maupin, 16 Missouri, 124; Smith 
v. St. Louis Schools, 30 Missouri, 290. And the only question in Jones 
v. Soulard was of the title, not in the bed or shore of the river, but only 
in accretions which had become part of the fast land. 

The rule, everywhere admitted, that where the land encroaches upon 
the water by gradual and imperceptible degrees, the accretion or alluvion 
belongs to the owner of the land, is equally applicable to lands bounding 
on tide waters or on fresh waters, and to the King or the State as to 
private persons; and is independent of the law governing the title in the 
soil covered by the water: Lord Hale, in Hargrave’s Law Tracts, 5, 
14, 28; Rex v. Yarborough, in the King’s Bench, 3 B. & C., 91, and 4 
D. & R., 790, and in the House of Lords, 1 Dow & Clark, 178, 2 
Bligh N. R., 147, and 5 Bing., 163; Doe v. East India Co., 10 Moore, 
P. C., 140; Foster v. Wright, 4 C. P. D., 438; Handly v. Anthony, 5 
Wheat., 374, 380; Jefferis v. East Omaha Co., 134 U. S., 178, 189-193; 
Nebraska v. Iowa, 143 U. S., 359; Minto v. Delaney, 7 Oregon, 337. 

Again, in St. Clair v. Lovingston (1874), 23 Wall., 46, the right of a 
riparian proprietor in St. Louis, which was upheld by this court, affirm¬ 
ing the judgment of the Supreme Court of Illinois in 64 Illinois, 56, and 
which Mr. Justice Swayne, in delivering the opinion, spoke of as resting 


66 


in the law of nature, was the right to alluvion or increase of the upland 
by gradual and imperceptible degrees. And, as if to prevent any possible 
inference that the decision might affect the title in the soil under the 
water, the learned justice, after quoting the opinion in Jones v. Soulard, 
above cited, expressly reserved the expression of any opinion upon the 
question whether the limit of the land was low water or the middle 
thread of the river; and repeated the propositions established by the 
earlier decisions of this court, already referred to: By the American 
Revolution, the people of each State, in their sovereign character, acquired 
the absolute right to all their navigable waters and the soil under them. 
The shores of navigable waters and the soil under them were not granted 
by the Constitution to the United States, but were reserved to the States 
respectively. And new States have the same rights of sovereignty and 
jurisdiction over this subject as the original ones:” 23 Wall., 64, 68. 

Some passages in the opinions in Dutton v. Strong (1861), 1 Black, 
23; Railroad Co. v. Schurmeir (1868), 7 Wall., 272; and Yates v. Mil¬ 
waukee (1870), 10 Wall., 497, were relied on by the learned counsel for 
the plaintiff in error, as showing that the owner of land adjoining any 
navigable water, whether within or above the ebb and flow of the tide, 
has, independently of local law, a right of property in the soil below 
high-water mark, and the right to build out wharves so far, at least, as to 
reach water really navigable. 

But the remarks of Mr. Justice Clifford in the first of those cases, 
upon which his own remarks in the second case and those of Mr. Justice 
Miller in the third case were based, distinctly recognized the diversity of 
laws and usages in the different States upon this subject; and went no 
further than to say that wharves, piers and landing places, ‘‘where they 
conform to the regulations of the State” and do not extend below low- 
water mark, have never been held to be nuisances, unless they obstruct 
the paramount right of navigation; that'the right of the riparian pro¬ 
prietor to erect such structures in the navigable waters of the Atlantic 
States has been claimed, exercised and sanctioned from the first settlement 
of the country to the present time; that “different States adopted differ¬ 
ent regulations upon the subject, and in some, the right of the riparian 
proprietor rests upon immemorial local usage;” and that “no reason is 
perceived why the same general principle should not be applicable to the 
lakes, so far as to permit the owner of the adjacent land to build out as 
far as where the water first becomes deep enough to be navigable: 1 
Black, 31, 32. And none of the three cases called for the laying down 
or defining of any general rule, independent of local law or usage, or 
of the particular facts before the court. 


67 


In Dutton v. Strong, the defendants, being the owners and occupants 
of a pier extending into Lake Michigan at Racine in the State of Wis¬ 
consin, were sued for cutting the hawser by which the plaintiffs had 
fastened their vessel to the pier during a storm, in consequence of which 
she was driven, by the force of the winds and the waves, against another 
pier, and injured. And, as stated in the opinion, the pier appeared to be 
the private property of the defendants, constructed for their own use; 
there was no evidence that it constituted any obstruction whatever to the 
public right of navigation; the plaintiffs’ vessel was made fast to it by her 
master without any authority from the defendants, either express or im¬ 
plied; and, under the increasing strain of the hawser by the storm, the 
piles of the pier began to give way before the hawser was cut. The only 
point adjudged was that, the plaintiffs’ vessel having been wrongfully 
attached to the pier, the defendants, after she had been requested and had 
refused to leave, had the right to cut her loose, if necessary to preserve 
the pier from destruction or injury: 1 Black, 33, 34. There can be no¬ 
doubt of the correctness of that decision; for, even if the pier had been 
unlawfully erected by the defendants as against the State, the plaintiffs 
had no right to pull it down or injure it, and upon the facts of the case 
were mere trespassers upon the defendants’ possession: LinthiCum v. 
Ray, 9 Wall., 241 ; Westmore v. Brooklyn Gaslight Co., 42 N. Y. 384; 
Harrington v. Edwards, 17 Wisconsin, 604; Johnson v. Barret, Aleyn, 
10 , 11 . 

In Railroad Co. v. Schurmeir, the plaintiff claimed title to lots in 
a block in the city of St. Paul and State of Minnesota under a patent 
from the United States of a fractional section, bounded on one side 
by the Mississippi River. At the place in question there was a small 
island, lying along the shore of the river, about 4 feet lower than the 
mainland, and separated from it by a channel or slough 28 feet wide, 
in which at very low water there was no current, and very little 
water, and that standing in pools; at a medium stage of the water 
the island was not covered, and there was a current or flow through 
the channel or slough; and at very high water the island was sub¬ 
merged. In the original Government survey, the meander lines were 
run along the mainland of the shore, the quantity of land was esti¬ 
mated accordingly, and the island and intervening space were not 
shown or mentioned. That island and space were afterwards filled 
up by the city as a landing place, and were claimed by the railroad 
company under a subsequent survey and grant from the United States. 
The island, therefore, was connected with the mainland by a space 
substantially uncovered at low water; and the improvements com- 


68 


plained of did not extend beyond high-water mark of the island. 
The question in controversy was whether the plaintiff’s patent was 
limited by the main shore, or extended to the outsiue of the island. 
The Supreme Court of Minnesota held that, by the law of Minne¬ 
sota, land bounded by a navigable river extended to low-water mark, 
at least, if not to the thread of the river; and that the plaintiff s title 
therefore extended to the water’s edge at low-water mark and included 
the island, and gave judgment for the plaintiff: 10 Minnesota, 82. 
This court affirmed the judgment, saying: ''Express decision of the 
Supreme Court of the .State was, that the river, in this case, and not 
the meander line, is the west boundary of the lot, and in that con- 
• elusion of the State court we entirely concur. Meander lines are run 
in surveying fractional portions of the public lands bordering upon 
navigable rivers, not as boundaries of the tract, but for the purpose 
of defining the sinuosities of the banks of the stream and as the 
means of ascertaining the quantity of land in the fraction subject to 
sale, and which is to be paid for by the purchaser. In preparing the 
official plat from the field notes, the meander line is represented as 
the border line of the stream, and shows, to a demonstration, that the 
watercourse, and not the meander line as actually run on the land, is 
the boundary:” 7 Wall., 286, 287. The court also expressed an un¬ 
hesitating opinion that ''Congress, in making a distinction between 
streams navigable and those not navigable, intended to provide that 
the common law rules of riparian ownership should apply to lands 
bordering on the latter, but that the title to lands bordering on navi¬ 
gable streams should stop at the stream, and that all such streams 
should be deemed to be and remain public highways.” And the court 
treated it as too plain for discussion, that the island, separated from 
the mainland only by a depression in which at low water there was 
no continuous flow or line of water, was included in the first survey, 

• and therefore not affected by the subsequent survey: 7 Wall., 288, 289. 

In Yates v. Milwaukee, the material facts appear by the report to 
have been as follows: The owner of a lot fronting on a river in the 
city of Milwaukee and State of Wisconsin had built, upon land cov¬ 
ered by water of no use for the purpose of navigation, a wharf ex¬ 
tending to the navigable channel of the river. There was no evidence 
that the wharf was an obstruction to navigation, or was in any sense 
a nuisance. The city council afterwards, under a statute of the State, 
enacted before the wharf was built, authorizing the city coyncil to 
establish dock and wharf lines upon the banks of the river, to restrain 
and prevent encroachments upon and obstructions to the river, and 


69 


to cause the river to be dredged, passed an ordinance declaring the 
wharf to be an obstruction to navigation and a nuisance, and ordering 
it to be abated. 1 he point adjudged was that the mere declaration 
of the city council that the wharf already built and owned by the 
plaintiff was a nuisance did not make it such, or subject it to be re¬ 
moved by authority of the city. It was recognized in the opinion 
that by the law of Wisconsin, established by the decisions of its Su¬ 
preme Court, the title of the owner of land bounded by a navigable 
river extended to the center of the stream, subject, of course, to the 
Public right of navigation: Jones v. Pettibone, 2 Wisconsin, 308; Wal¬ 
ker v. Shepardson, 2 Wisconsin, 384, and 4 Wisconsin, 486; Mariner 
v. Schulte, 13 Wisconsin, 692; Arnold v. Elmore, 16 Wisconsin, 536. 
See also Olson v. Merrill, 42 Wisconsin, 203; Norcross v. Griffiths, 
65 Wisconsin, 599. And the only decision of that court, which this 
court considered itself not bound to follow, was Yates v. Judd, 18 
Wisconsin, 118, upon the question of fact whether certain evidence 
was sufficient to prove a dedication to the public: 10 Wall., 504-506. 

VII. The later judgments of this court clearly establish that the 
title and rights of riparian littoral proprietors in the soil below high- 
water mark of navigable waters are governed by the local laws of the 
several States, subject, of course, to the rights granted to the United 
States by the Constitution. 

In Weber v. Harbor Commissioners, above cited, Mr. Justice Field, 
in delivering judgment, while recognizing the correctness of the doc¬ 
trine f 'that a riparian proprietor, whose land is bounded by a navi¬ 
gable stream, has the right of access to the navigable part of the 
stream in front of his land, and to construct a wharf or pier project¬ 
ing into the stream, for his own use, or the use of others, subject to 
such general rules and regulations as the legislature may prescribe for 
the protection of the public,” and admitting that in several of the 
States, by general legislation or immemorial usage, the proprietor of 
land bounded by the shore of the sea or an arm of the sea, has a right 
to wharf out to the point where the waters are navigable, said: ”In 
the absence of such legislation or usage, however, the common law 
rule would govern the rights of the proprietor, at least in those States 
where the common law obtains. By that law, the title to the shore 
of the sea, and of the arms of the sea, and in the soils under tide 
waters is, in England, in the King, and, in this country, in the State. 
Any erection thereon without license is, therefore, deemed an en¬ 
croachment upon the property of the sovereign, or, as it is termed in 

t 

the language of the law, a purpresture, which he may remove at 


70 


pleasure, whether it tends to obstruct navigation or otherwise. 18 
Wall., 64, 65. 

In Atlee v. Packet Co. (1874), 21 Wall., 389, which arose in Iowa 
in 1871, Mr. Justice Miller, in delivering judgment, after referring 
to Dutton v. Strong, Railroad Co. v. Schurmeir, and Yates v. Mil¬ 
waukee, above cited, disclaimed laying down any invariable rule as 
to the extent to which wharves and landing places might be built out 
into navigable waters by private individuals or municipal corpora¬ 
tions; and recognized that a State might, by its legislation, or by au¬ 
thority expressly or impliedly delegated to municipal governments, 
control the construction, erection and use of such wharves or land¬ 
ings, so as to secure their safety and usefulness, and prevent their be¬ 
ing obstructions to navigation: 21 Wall., 392, 393. And it was 
adjudged, following in this respect the opinion of the Circuit Court 
in 2 Dillon, 479, that a riparian proprietor had no right, without 
statutory authority, to build out piers into the Mississippi River as 
necessary parts of a boom to receive and retain logs until needed for 
sawing at his mill by the water side. In Railway Co. v. Renwick 
(1880), 102 U. S., 180, affirming the judgment of the Supreme Court 
of Iowa in 49 Iowa, 664, it was by virtue of an express statute passed 
by the legislature of Iowa in 1874, that the owner of a similar pier 
and boom recovered compensation for the obstruction of access to it 
from the river by the construction of a railroad in front of it. 

In Barney v. Keokuk (1876), 94 U. S., 324, the owner, under a 
grant from the United States, of two lots of land in the city of Keo¬ 
kuk and State of Iowa, bounded by the Mississippi River, brought an 
action of ejectment against the city and several railroad companies 
and a steamboat company to recover possession of lands below high- 
water mark in front of his lots, which the city, pursuant to statutes 
of the State, had filled up as a wharf and levee, and had permitted to 
be occupied by the railroads and landing places of those companies. 
The plaintiff’s counsel relied on Dutton v. Strong, Railroad Co. v. 
Schurmeir and Yates v. Milwaukee, above cited: 94 U. S., 329,331. 
But this court, affirming the judgment of the Circuit Court of the 
United States, held that the action could not be maintained; and Mr. 
Justice Bradley, in delivering judgment, summed up the law upon the 
subject with characteristic power and precision, saying: "It appears 
to be the settled law of that State that the title of the riparian pro¬ 
prietors on the banks of the Mississippi extends only to ordinary high- 
water mark, and that the shore between high and low water mark, as 
well as the bed of the river, belongs to the State. This is also the 


71 


common law with regard to navigable waters; although, in England, 
no waters are deemed navigable except those in which the tide ebbs 
and flows. In this country, as a general thing, all waters are deemed 
navigable which are really so; and especially is it true with regard 
to the Mississippi and its principal branches. The question as to 
the extent of the riparian title was elaborately discussed in the case 
of McManus v. Carmichael. 3 Iowa, 1. The above conclusion was 
reached, and has always been adhered to in that State: Haight v. 
Keokuk, 4 Iowa, 199; Tomlin v. Dubuque &c. Railroad, 32 Iowa 
106.” "It is generally conceded that the riparian title attaches to 
subsequent accretions to the land, effected by the gradual and im¬ 
perceptible operation of natural causes. But whether it attaches to 
land reclaimed by artificial means from the bed of the river, or to 
sudden accretions produced by unusual floods, is a question which 
each State decides for itself. By the common law, as before remarked, 
such additions to the land on navigable waters belong to the Crown; 
but, as the only waters recognized in England as navigable were tide 
waters, the rule was often expressed as applicable to tide waters only, 
although the reason of the rule would equally apply to navigable 
waters above the flow of the tide; that reason being that the public 
authorities ought to have entire control of the great passageways of 
commerce and navigation, to be exercised for the public advantage 
and convenience. The confusion of navigable with tide water, 
found in the monuments of the common law, long prevailed in this 
country, notwithstanding the broad differences existing between the 
extent and topography of the British island and that of the American 
continent. It had the influence for two generations of excluding the 
admiralty jurisdiction from our great rivers and inland seas; and under 
the like influence it laid the foundation in many States of doctrines, 
with regard to the ownership of the soil in navigable waters above 
tide water, at variance with sound principles of public policy. Whether, 
as rules of property, it would now be safe to change these doctrines 
where they have been applied, as before remarked, is for the several 
States themselves to determine. If they choose to resign to the 
riparian proprietor rights which properly belong to them in their sov¬ 
ereign capacity, it is not for others to raise objections. In our view 
of the subject, the correct principles were laid down in Martin v. 
Waddell, 16 Pet., 367; Pollard v. Hagan, 3 How., 212; and Good- 
title v. Kibbe, 9 How., 471. These cases related to tide water, it is 
true; but they enunciate principles which are equally applicable to 
all navigable waters. And since this court, in the case of The Gen- 


72 


esee Chief, 12 How., 443, has declared that the Great Lakes and 
other navigable waters of the country, above as well as below the flow 
of the tide, are, in the strictest sense, entitled to the denomination 
of navigable waters, and amenable to the admiralty jurisdiction, there 
seems to be no sound reason for adhering to the old rule as to the 
proprietorship of the beds and shores of such waters. It properly be¬ 
longs to the States by their inherent sovereignty, and the United 
States has wisely abstained from extending (if it could extend) its 
survey and grants beyond the limits of high water. The cases in 
which this court has seemed to hold a contrary view depended, as 
most cases must depend, on the local laws of the States in which the 
lands were situated. In Iowa, as before stated, the more correct rule 
seems to have been adopted after a most elaborate investigation of the 
subject:” 94 U. S., 336-338. 

In St. Louis v. Myers (1885), 113 U. S., 566, the court, speaking 
by Chief Justice Waite, held that the act of Congress for the admis¬ 
sion into the Union of the State of Missouri, bounded by the Mis¬ 
sissippi River, which declared that the river should be "a common 
highway and forever free,” left the rights of riparian owners to be 
settled according to the principles of State law; and that no Federal 
question was involved in a judgment of the Supreme Court of the 
State of Missouri as to the right of a riparian proprietor in the city of 
St. Louis to maintain an action against the city for extending one of 
its streets into the river so as to divert the natural course of the water 
and thereby to injure his property. 

In Packer v. Bird (1891), 137 U. S., 661, the general rules govern¬ 
ing this class of cases were clearly and succinctly laid down by the 
court, speaking by Mr. Justice Field, as follows: "The courts of the 
United States will construe the grants of the general government with¬ 
out reference to the rules of construction adopted by the States for 
their grants; but whatever incidents or rights attach to the ownership 
of property conveyed by the government will be determined by the 
States, subject to the condition that their rules do not impair the 
efficacy of the grants, or the use and enjoyment of the property by the 
grantee. As an incident of such ownership, the right of the riparian 
owner, where the waters are above the influence of the tide, will be 
limited according to the law of the State, either to low or high water 
mark, or will extend to the middle of the stream:” 137 U. S., 669, 
670. And it was accordingly held, affirming the judgment of the 
Supreme Court of California in 71 California, 134, and referring to 
the opinion in Barney v. Keokuk, above cited, as specially applicable 


73 


to the case, that a person holding land under a patent from the United 
States, confirming a Mexican grant bounded by the Sacramento River, 
which was navigable in fact, took no title below the high-water mark, 
either under the acts of Congress or by the local law. 

In St. Louis v. Rutz (1891), 138 U. S., 226, the court, speaking 
by Mr. Justice Blatchford, and referring to Barney v. Keokuk, St. 
Louis v. Myers and Packer v. Bird, above cited, said: "The question 
as whether the fee of the plaintiff, as a riparian proprietor on the 
Mississippi River, extends to the middle thread of the stream, or only 
to the water’s edge, is a question in regard to a rule of property, 
which is governed by the local law of Illinois.” And it was because 
"the Supreme Court of Illinois has established and steadily main¬ 
tained, as a rule of property, that the fee of the riparian owner of 
lands in Illinois bordering on the Mississippi River extends to the 
middle line of the main channel of that river,” that it was decided 
that a deed of land in Illinois, bounded by the Mississippi River, 
passed the title in fee in the bed of the river to the middle line of the 
channel, and to all islands found in the bed of the river east of the 
middle of that channel; and, "that being so, it is impossible for the 
owner of an island which is situated on the west side’of the middle 
of the river, and in the State of Missouri, to extend his ownership, 
by mere accretion, to land situated in the State of Illinois, the title 
in fee to which is vested by the law of Illinois in the riparian owner 
of the land in that State:” 138 U. S., 242, 250. 

In the recent case of Hardin v. Jordan (1891), 140 U. S., 371, in 
w r hich there was a difference of opinion upon the question whether a 
survey and patent of the United States, bounded by a lake which was 
not navigable, in the State of Illinois, was limited by the margin, or ex¬ 
tended to the center of the lake, all the iustices agreed that the question 
must be determined by the law of Illinois. Mr. Justice Bradley, speak¬ 
ing for the majority of the court, and referring to many cases already 
cited above, said : “ With regard to grants of the government for lands 
bordering on tide water, it has been distinctly settled that they only ex¬ 
tend to high-water mark, and that the title to the shore and lands under 
water in front of lands so granted enures to the State within which they 
are situated, if a State has been organized and established there. Such 
title to the shore and lands under water is regarded as incidental to the 
sovereignty of the State—a portion of the royalties belonging thereto, and 
held in trust for the public purposes of navigation and fishery—and can 
not be retained or granted out to individuals by the United States. Such 
title being in the State, the lands are subject to State regulations and con- 


74 


trol, under the condition, however, of not interfering with the regulations 
which may be made by Congress with regard to public navigation and 
commerce. The State may even dispose of the usufruct of such lands, 
as is frequently done by leasing oyster beds in them, and granting fisheries 
in particular localities; also, by the reclamation of submerged flats, and 
the erection of wharves and piers and other adventitious aids of commerce. 
Sometimes large areas so reclaimed are occupied by cities, and are put to 
other public or private uses, State control and ownership therein being 
supreme, subject only to the paramount authority of Congress in making 
regulations of commerce, and in subjecting the lands to the necessities 
and uses of commerce. This right of the States to regulate and control 
the shores of tide waters and the land under them is the same as that 
which is exercised by the Crown in England. In this country the same 
rule has been extended to our great navigable lakes, which are treated as 
inland seas; and also, in some of the States, to navigable rivers, as the 
Mississippi, the Missouri, the Ohio, and, in Pennsylvania, to all the per¬ 
manent rivers of the State; but it depends on the law of each State to 
what waters and to what extent this prerogative of the State over the 
lands under water shall be exercised:” 140 U. S., 381, 382. And Mr. 
Justice Brewer, in beginning the dissenting opinion, said: ‘ Beyond all 
dispute, the settled law of this court, established by repeated decisions, is 
that the question how far the title of a riparian owner extends is one of 
local law. For a determination of that question the statutes of the State 
and the decisions of its highest court furnished the best and the final 
authority:” 140 U. S., 402. 

In the yet more recent case of Illinois Central Railroad v. Illinois 
(1892), which also arose in Illinois, it was recognized as the settled law 
of this country that the ownership of and dominion and sovereignty over 
lands covered by tide waters, or navigable lakes, within the limits of the 
several States, belong to the respective States within which they are found, 
with the consequent right to use or dispose of any portion thereof, when 
that can be done without substantial impairment of the interest of the 
public in such waters, and subject to the paramount right of Congress to 
control their navigation so far as may be necessary for the regulation of 
commerce: 146 U. S., 387, 435-437, 465, 474. 

VIII. Notwithstanding the dicta contained in some of the opinions of 
this court, already quoted, to the effect that Congress has no power to 
grant any land below high-water mark of navigable waters in a Territory 
of the United States, it is evident that this is not strictly true. 

Chief Justice Taney, in delivering an opinion already cited, after the 
subject had been much considered in the cases from Alabama, said: 


75 


“Undoubtedly Congress might have granted this land to the patentee, or 
confirmed his Spanish grant, before Alabama became a State Goodtitle 
v. Kibbe, 9 How., 471, 478. In the cases from California, already re¬ 
ferred to, the question whether a Mexican grant, confirmed by the United 
States, did or did not include any lands below high-water mark, was 
treated as depending on the terms of the decree of confirmation by a 
court of the United States under authority of Congress. By the applica¬ 
tion of that test, no such lands were held to be included in United States 
v. Pacheco, 2 Wall., 587, and some such lands were held to be included 
in Knight v. United States Land Association, 142 U. S., 161. And in 
Packer v. Bird, 137 U. S., 661, 672, Mr. Justice Field, speaking for the 
court, after referring to the rule, as stated in Railroad Co. v. Schurmeir, 
7 Wall.. 272, 288, above quoted, that Congress, by the provisions of the 
land laws, intended that the title to lands bordering on navigable streams 
should stop at the stream, said: “The same rule applies when the survey 
is made and the patent is issued upon a confirmation of a previously ex¬ 
isting right or equity of the patentee to the lands, which in the absence 
of such right or equity would belong absolutely to the United States, 
unless the claim confirmed in terms embraces the land under the waters 
of the stream.” 

By the Constitution, as is now well settled, the United States, having 
rightfully acquired the Territories, and being the only government which 
can impose laws upon them, have the entire dominion and sovereignty, 
national and municipal, Federal and State, over all the Territories, so 
long as they remain in a territorial condition: American Ins. Co. v. 
Canter, 1 Pet., 511, 542; Benner v. Porter, 9 How., 235, 242; Cross 
v. Harrison, 16 How., 164, 193 ; National Bank v. Yankton County, 
101 U. S., 129, 133; Murphy v. Ramsey, 114 U. S., 15, 44; Mormon 
Church v. United States, 136 U. S., 1, 42, 43; McAllister v. United 
States, 141 U. S., 174, 181. 

We can not doubt, therefore, that Congress has the power to make 
grants of lands below high-water mark of navigable waters in any Terri¬ 
tory of the United States, whenever it becomes necessary to do so in 
order to perform international obligations, or to effect the improvement 
of such lands for the promotion and convenience of commerce with 
foreign nations and among the several States, or to carry out other public 
purposes appropriate to the objects for which the United States hold the 
Territory. 

IX. But Congress has never undertaken by general laws to dispose of 
such lands. And the reasons are not far to seek. 

As has been seen, by the law of England, the title in fee, or jus pri- 


76 


vatum, of the King or his grantee, was, in the phrase of Lord Hale, 
“ charged with and subject to that jus publicum which belongs to the 
King’s subjects,” or, as he elsewhere puts it, is clothed and superinduced 
with a jus publicum , wherein both natives and foreigners in peace with this 
kingdom are interested by reason of common commerce, trade and inter¬ 
course:” Hargrave’s Law Tracts, 36, 84. In the words of Chief Justice 
Taney, “the country” discovered and settled by Englishmen was held 
by the King in his public and regal character as the representative of the 
nation, and in trust for themand the title and the dominion of the tide 
waters and of the soil under them, in each colony, passed by the royal 
charter to the grantees as “a trust for the common use of the new com¬ 
munity about to be establishedand, upon the American Revolution, 
vested absolutely in the people of each State for their own common 
use, subject only to the rights since surrendered by the Constitution to 
the general government:” Martin v. Waddell, 16 Pet., 367, 409-411. 
As observed by Mr. Justice Curtis, “This soil is held by the State, not 
only subject to, but in some sense in trust for, the enjoyment of certain 
public rights:” Smith v. Maryland, 18 How., 71, 74. The title to the 
shore and the lands under tide water, said Mr. Justice Bradley, “is re¬ 
garded as incidental to the sovereignty of the State—a portion of the roy¬ 
alties belonging thereto, and held in trust for the. public purposes of navi¬ 
gation and fishery:” Hardin v. Jordan, 140 U. S., 371, 381. And the 
Territories acquired by Congress, whether by deed of cession from the 
original States, or by treaty with a foreign country, are held with the ob¬ 
ject, as soon as their population and condition justify it, of being admitted 
into the Union as States, upon an equal footing with the original States in 
all respects; and the title and dominion of the tide waters and the lands 
under them are held by the United States for the benefit of the whole 
people, and, as this court has often said, in cases above cited, “in trust for 
the future States:” Pollard v. Hagan, 3 How., 212, 221, 222; Weber v. 
Harbor Commissioners, 18 Wall., 57, 65; Knight v. United States Land 
Association, 142 U. S., 161, 183. 

The Congress of the United States, in disposing of the public lands, has 
constantly acted upon the theory that those lands, whether in the interior, 
or on the coast, above high-water mark, may be taken up by actual oc¬ 
cupants, in order to encourage the settlement of the country ; but that the 
navigable waters and the soils under them, whether within or above the 
ebb and flow of the tide, shall be and remain public highways; and, being 
chiefly valuable for the public purposes of commerce, navigation and fish¬ 
ery, and for the improvements necessary to secure and promote those pur¬ 
poses, shall not be granted away during the period of territorial govern- 


77 


ment; but, unless in case of some international duty or public exigency, 
shall be held by the United States in trust for the future States, and shall 
vest in the several States, when organized and admitted into the Union, 
with all the powers and prerogatives appertaining to the older States in re¬ 
gard to such waters and soils within their respective jurisdictions; in short, 
shall not be disposed of piecemeal to individuals as private property, but 
shall be held as a whole for the purpose of being ultimately administered 
and dealt with for the public benefit by the State, after it shall have become 
a completely organized community. 

X. The title of the United States to Oregon was founded upon original 
discovery and actual settlement by citizens of the United States, authorized 
or approved by the Government of the United States, as well as upon the 
cession of the Louisiana Territoiy by France in the treaty of 1803, and 
the renunciation of the claims of Spain in the treaty of 1819: American 
State Papers, 6 Foreign Relations, 666; Barrow’s History of Oregon, c. 22; 
8 Stat., 202, 256. While the right to Oregon was in contest between the 
United States and Great Britain, the citizens of the one and the subjects 
of the other were permitted to occupy it under the conventions of 1818 
and 1827: 8 Stat., 249, 360. Its boundary on the north was defined by 
the treaty with Great Britain of June 15, 1846: 9 Stat., 869. So far as 
the title of the United States was derived from France or Spain, it stood 
as in other territories acquired by treaty. The independent title based on 
discovery and settlement was equally absolute: Johnson v. McIntosh, 8 
Wheat., 543, 595; Martin v. Waddell, 16 Pet., 367, 409; Jones v. United 
States, 137 U. S., 202, 212. 

By the act of 1848, establishing the territorial government of Oregon, 
all laws heretofore passed in said Territory, making grants of land, or 
otherwise affecting or incumbering the title to lands,” were declared to be 
void ; and the laws of the United States were “extended over and declared 
to be in force in said Territory, so far as the same, or any provision thereof, 
may be applicable:” Act of August 14, 1848, c. 177, 14; 9 Stat., 329. 
The land laws adopted by the provisional government of Oregon, estab¬ 
lished by the people while the sovereignty was in dispute between the 
United States and Great Britain, regulated the occupation only. The set¬ 
tlers had no title in the soil. The United States, on assuming undisputed 
dominion over the Territory, owned all the lands therein; and Congress 
had the right to confine its bounties to settlers within just such limits as it 
chose. The provisions of the general land laws of the United States were 
not applicable to the Oregon Territory. And before 1850 there was no 
statute under which any one could acquire a legal title from the United 
States to lands in Oregon: Lownsdale v. Parrish, 21 How., 290, 293; 


78 


Stark v. Starr, 6 Wall., 402; Davenport v. Lamb, 13 Wall., 418, 429, 
430; Lamb v. Davenport, 18 Wall., 307, 314; Stark v. Starr, 94 U. S., 
477, 486; Barney v. Dolph, 97 U. S., 652, 654; Hall v. Russell, 101 
U. S., 503, 507, 508; Missionary Society v. Dalles, 107 U. S., 336,344. 

The first act of Congress which granted to settlers titles in such lands 
was the Oregon Donation Act of September 27, 1850, c. 76. That act 
required the lands in Oregon to be surveyed as in the Northwest Territory; 
and it made grants or donations of land, measured by sections, half sections 
and quarter sections, to actual settlers and occupants. It contains noth¬ 
ing indicating any intention on the part of Congress to depart from its 
settled policy of not granting to individuals lands under tide waters or 
navigable rivers: 9 Stat., 496; Rev. Stat., 2395, 2396, 2409. 

It is evident, therefore, that a donation claim under this act, bounded 
by the Columbia River, where the tide ebbs and flows, did not, of its own 
force, have the effect of passing any title in lands below high-water mark. 
Nor is any such effect attributed to it by the law of the State of Oregon. 

The southern part of the Territory of Oregon was admitted into the 
Union as the State of Oregon, “on an equal footing with the other States 
in all respects whatever,” by the act of February 14, 1859, c. 33; and the 
act of admission provided that “the said State of Oregon shall have con¬ 
current jurisdiction on the Columbia and all other rivers and waters bor¬ 
dering on the said State of Oregon, so far as the same shall form a com¬ 
mon boundary to said State and any other State or States now or hereafter 
to be formed or bounded by the same; and said rivers and waters, and all 
the navigable waters of said State, shall be common highways and forever 
free, as well to the inhabitants of said State as to all other citizens of the 
United States:” 11 Stat., 383. 

The settlers of Oregon, like the colonists of the Atlantic States, coming 
from a country in which the common law prevailed to one that had no 
organized government, took with them, as their birthright, the principles 
of the common law, so far as suited to their condition in their new home. 
The jurisprudence of Oregon, therefore, is based on the common law: 
Van Ness v ; Pacard, 2 Pet, 137, 144; Norris v. Harris, 15 California, 
226, 252; Cressey v. Tatom, 9 Oregon, 541; Lamb v. Starr, Deady 
350, 358. y ’ 

By the law of the State of Oregon, as declared and established by the 
decisions of its Supreme Court, the owner of upland bounding on navi¬ 
gable water has no title in the adjoining lands below high-water mark, and 
no right to build wharves thereon, except as expressly permitted by statutes 
of the State; but the State has the title in those lands, and, unless they 
have been so built upon its permission, the right to sell and convey them 


79 


to any one, free of any right in the proprietor of the upland, and subject 
only to the paramount right of navigation inherent in the public: Hin- 
man v. Warren, 6 Oregon, 408; Parker v. Taylor, 7 Oregon, 435; Par¬ 
ker v. Rogers, 8 Oregon, 183 ; Shively v. Parker, 9 Oregon, 500; McCann 
v. Oregon Railway, 13 Oregon, 455; Bowlby v. Shively, 22 Oregon, 410. 
See also Shively v. Welch, 10 Sawyer, 136, 140, 141. 

In the case at bar, the lands in controversy are below high-water mark 
of the Columbia River where the tide ebbs and flows; and the plaintiff 
in error claims them by a deed from John M. Shively, who, while 
Oregon was a Territory, obtained from the United States a donation 
claim, bounded by the Columbia River, at the place in question. 

The defendants in error claim title to the lands in controversy by 
deeds executed in behalf of the State of Oregon, by a board of com¬ 
missioners, pursuant to a statute of the State of 1872, as amended by a 
statute of 1874, which recited that the annual encroachments of the sea 
upon the land, washing away the shores and shoaling harbors, could be 
prevented only at great expense by occupying and placing improvements 
upon the tide and overflowed lands belonging to the State, and that it 
was desirable to offer facilities and encouragement to the owners of the 
soil abutting on such harbors to make such improvements; and therefore 
enacted that the owner of any land abutting or fronting upon, or bounded 
by the shore of any tide waters, should have the right to purchase the 
lands belonging to the State in front thereof; and that, if he should not 
do so within three years from the date of the act, they should be open to 
purchase by any other person who was a citizen and resident of Oregon, 
after giving notice and opportunity to the owner of the adjoining upland 
to purchase; and made provisions for securing to persons who had 
actually made improvements upon tide lands a priority of right so to pur¬ 
chase them. 

Neither the plaintiff in error nor his grantor appears to have ever built 
a wharf or made any other improvement upon the lands in controversy, 
or to have applied to the State to purchase them. But the defendants in 
error, after their purchase from the State, built and maintained a wharf 
upon the part of these lands nearest the channel, which extended several 
hundred feet into the Columbia River, and at which ocean and river 
craft were wont to receive and discharge freight. 

The theory and effect of these statutes were stated by the Supreme 
Court of the State, in this case, as follows: “Upon the admission of the 
State into the Union, the tide lands became the property of the State, and 
subject to its jurisdiction and disposal. In pursuance of this power, the 
State provided for the sale and disposal of its tide lands by the act of 


80 


1872 and the amendments of 1874 and 1876: Laws, 1872, p. 129; Laws, 
1874, p. 77; Laws, 1876, p. 70. By virtue of these acts, the owner or 
owners of any land abutting or fronting upon or bounded by the shore of 
the Pacific Ocean, or of any bay, harbor or inlet of the same, and rivers 
and their bays in which the tide ebbs and flows, within this State, were 
given the right to purchase all the tide lands belonging to the State, in 
front of the lands so owned, within a certain time and upon conditions 
prescribed; and providing further that in case such owner or owners did 
not apply for the purchase of such tide lands, or, having applied, failed to 
prosecute the same as provided by law, then that such tide lands shall be 
open to purchase by any other person who is a resident and citizen of the 
State of Oregon; but in consideration of the fact that prior to 1872, as 
it would seem, these lands had been dealt with as private property, and 
sometimes improved by expensive structures; the acts further provided, 
in such cases, that where the bank owners had actually sold the tide 
lands, then the purchaser of the tide land from the bank owner, or a 
previous bank owner, should have the right to purchase from the State. 
These statutes are based on the idea that the State is the owner of the 
tide lands, and has the right to dispose of them; that there are no rights 
of upland ownership to interfere with this power to dispose of them and 
convey private interests therein, except such as the State saw fit to give 
the adjacent owners, and to acknowledge in them and their grantees 
when they had dealt with such tide lands as private property, subject, of 
course, to the paramount right of navigation secured to the public. 
These statutes have been largely acted upon, and many titles acquired 
under them to tide lands. In the various questions relating to tide lands 
which have come before the judiciary, the validity of these statutes has 
been recognized and taken for granted, though not directly passed upon:” 
22 Oregon, 415, 416. 

The substance and scope of the earlier statute of Oregon of October 
14, 1862 (General Laws of 1862, p. 96; Hill’s Code of Oregon, 4227, 
4228), which is copied in the margin (a), were stated by that court as 
follows: “It is true, the legislature of this State had made provision by 
which the upland owner within the corporate limits of any incorporated 
town might build wharves, prior to the acts of 1872 and 1874, supra; 
but within the purview of our adjudications it would, as a matter of 
power, have been equally competent to have given this privilege to 
others. But this act is not a grant. It simply authorizes upland owners 
on navigable rivers within the corporate limits of any incorporated town 
to constr uct wharves in front of their land. It does not vest any right 

(a) Marginal note omitted. 



81 


until exercised. It is a license, revocable at the pleasure of the legislature 
until acted upon or availed of. Shively did not avail himself of the 
license, nor is there any pretense to that effect. The plaintiffs have built 
a wharf upon and in front of their tide land. If the act is as applicable 
to tide lands as uplands or navigable waters, they have exercised the 
right:” 22 Oregon, 420, 421. 

Upon a review of its prior decisions, the court was of opinion that by 
the law of Oregon, in accordance with the law as formerly held in New 
York in Gould v. Hudson River Railroad, 6 N. Y., 522; with the law 
of New Jersey, as declared in Stevens v. Paterson & Newark Railroad, 
5 Vroom (34 N. J. Law), 532, and recognized in Hoboken v. Pennsyl¬ 
vania Railroad, 124 U. S., 656; and with the law of the State of Wash¬ 
ington, on the other side of the Columbia River, as declared in Eisenbach 
v. Hatfield, 2 Wash. St., 236; and upon the principles affirmed in de¬ 
cisions of this court, above cited, and especially in Hardin v. Jordan, 140 
U. S., 371, 382; the authority conferred by the statutes of Oregon upon 
upland owners on navigable rivers to construct wharves in front of their 
land did not vest any right until exercised, but was a mere license revo¬ 
cable at the pleasure of the legislature until acted upon; and that the State 
had the right to dispose of its tide lands free from any easement of the 
upland owner. 

The court thus stated its final conclusion: “From all this it appears 
that when the State of Oregon was admitted into the Union, the tide lands 
became its property and subject to its jurisdiction and disposal; that in 
the absence of legislation or usage, the common law rule would govern 
the rights of the upland proprietor, and by that law the title to them is in 
the State; that the State has the right to dispose of them in such manner 
as she might deem proper, as is frequently done in various ways, and 
whereby sometimes large areas are reclaimed and occupied by cities, and 
are put to public and private uses, State control and ownership therein 
being supreme, subject only to the paramount right of navigation and 
commerce. The whole question is for the State to determine for itself; 
it can say to what extent it will preserve its rights of ownership in them, 
or confer them on others. Our State has done that by the legislation 
already referred to; and our courts have declared its absolute property in 
and dominion, over the tide lands, and its right to dispose of its title in 
such manner as it might deem best, unaffected by any ‘legal obligation 
to recognize the rights of either the riparian owners, or those who had 
occupied such tide lands,’ other than it chose to resign to them, subject 
only to the paramount right of navigation and the uses of commerce. 
From these considerations it results, if we are to be bound by the previous 


82 


adjudications of this court, which have become a rule of property, and 
upon the faith of which important rights and titles have become vested, 
and large expenditures have been made and incurred, that the defendants 
have no rights or interests in the lands in question. Upon this point 
there is no diversity of judgment among us. We all think that the law 
as adjudicated ought not to be disturbed, independent of other reasons 
and authorities suggested in its support: ” 22 Oregon, 427. 

By the law of the State of Oregon, therefore, as enacted by its legisla¬ 
ture and declared by its highest court, the title in the lands in controversy 
is in the defendants in error; and, upon the principles recognized and 
affirmed by a uniform series of recent decisions of this court, above re¬ 
ferred to, the law of Oregon governs the case. 

The conclusions from the considerations and authorities above stated 
may be summed up as follows: 

Lands under tide waters are incapable of cultivation or improvement 
in the manner of lands above high-water mark. They are of great value 
to the' public for the purposes of commerce, navigation and fishery. 
Their improvement by individuals, when permitted, is incidental or sub¬ 
ordinate to the public use and right. Therefore the title and the control 
of them are vested in the sovereign for the benefit of the whole people. 

At common law, the title and the dominion in lands flowed by the 
tide were in the King for the benefit of the nation. Upon the settlement 
of the Colonies, like rights passed to the grantees in the royal charters, 
in trust for the communities to be established. Upon the American 
Revolution, these rights, charged with a like trust, were vested in the 
original States within their respective borders, subject to the rights sur¬ 
rendered by the Constitution to the United States. 

Upon the acquisition of a Territory by the United States, whether by 
cession from one of the States, or by treaty with a foreign country, or by 
discovery and settlement, the same title and dominion passed to the United 
States, for the benefit of the whole people, and in trust for the several 
States to be ultimately created out of the Territory. 

The new States admitted into the Union since the adoption of the Con¬ 
stitution have the same rights as the original States in the tide waters, and 
in the lands under them, within their respective jurisdictions. The title 
and rights of riparian or littoral proprietors in the soil below high-water 
mark, therefore, are governed by the laws of the several States, subject to 
the rights granted to the United States by the Constitution. 

The United States, while they hold the country as a Territory, having 
all the powers both of national and municipal government, may grant, for 
appropriate purposes, titles or rights in the soil below high-water mark of 


83 


tide waters. But they have never done so by general laws; and, unless in 
some case of international duty or public exigency, have acted upon the 
policy, as most in accordance with the interest of the people and with the 
object for which the Territories were acquired, of leaving the administra¬ 
tion and disposition of the sovereign rights in navigable waters, and in the 
soil under them, to the control of the States, respectively, when organized 
and admitted into the Union. 

Grants by Congress of portions of the public lands within a Territory 
to settlers thereon, though bordering on or bounded by navigable waters, 
convey, of their own force, no title or right below high-water mark, and 
do not impair the title and dominion of the future State when created. 
but leave the question of the use of the shores by the owners of uplands 
to the sovereign control of each State, subject only to the rights vested by 
the Constitution in the United States. 

The donation land claim, bounded by the Columbia River, upon which 
the plaintiff in error relies, includes no title or right in the land below high- 
water mark; and the statutes of Oregon, under which the defendants in 
error hold, are a constitutional and legal exercise by the State of Oregon 
of its dominion over the lands under navigable waters. 

Judgment affirmed. 

U. S. Reports, Supreme Court, Vol. 152, pp. 1-58. 


SOUTH CAROLINA v. GEORGIA ET AL. 

1. The compact between South Carolina and Georgia, made in 1787, 
by which it was agreed that the boundary between the two States should 
be the northern branch or stream of the Savannah River, and that the 
navigation of the river along a specified channel should forever be equally 
free to the citizens of both States, and exempt from hinderance, interrup¬ 
tion, or molestation, attempted to be enforced by one State on the citizens 
of the other, has no effect upon the subsequent constitutional provision 
that Congress shall have power to regulate commerce with foreign 
nations and among the several States. 

2. Congress has the same power over the Savannah River that it has 
over the other navigable waters of the United States. 

3. The right to regulate commerce includes the right to regulate 
navigation, and hence to regulate and improve navigable rivers and ports 
on such rivers. 

4. Congress has power to close one of several channels in a navigable 
stream, if, in its judgment, the navigation of the river will be thereby im¬ 
proved. It may declare that an actual obstruction is not, in the view of 
the law, an illegal one. 

5. An appropriation for the improvement of a harbor on a navigable 
river, “to be expended under the direction of the Secretary of War,” 
confers upon that officer the discretion to determine the mode of im¬ 
provement, and authorizes the diversion of the water from one cfiannel 
into another, if in his judgment such is the best mode. By such diver¬ 
sion preference is not given to the ports of one State over those of 
another. Quaere, Whether a State suing for the prevention of a nuisance 
in a navigable river, which is one of its boundaries, must not aver and 
show that she sustains some special and peculiar injury thereby, such as 
would enable a private person to maintain a similar action. 

This is a bill in equity, filed in this court by the State of South 
Carolina, praying for an injunction restraining the State of Georgia, 
Alonzo Taft (Secretary of War), A. A. Humphries (Chief of the Corps 
of Engineers, United States Army), Q. A. Gilmore (Lieutenant-Colonel 
of that Corps), and their agents and subordinates, from “obstructing or 
interrupting” the navigation of the Savannah River, in violation of the 
compact entered into between the States of South Carolina and Georgia 


85 

on the twenty-fourth day of April, 1787. The first and second articles 
of that compact are as follows: 

ARTICLE 1. The most northern branch or stream of the river Savan¬ 
nah, from the sea or mouth of such stream to the fork or confluence of 
the rivers now called Tugoloo and Keowee, and from thence, the most 
northern branch or stream of the said river Tugoloo, till it intersects the 
northern boundary line of South Carolina, if the said branch or stream 
extends so far north, reserving all the islands in the said rivers Tugoloo 
and Savannah to Georgia; but if the head spring or source of any branch 
or stream of the said river Tugoloo does not extend to the north bound¬ 
ary line of South Carolina, then a west line to the Mississippi, to be 
drawn from the head spring or source of the said branch or stream of 
Tugoloo River which extends to the highest northern latitude, shall, for¬ 
ever hereafter, form the separation, limit, and boundary between the 
States of South Carolina and Georgia. 

' “ART. 2. The navigation of the river Savannah, at and from the bar 
and mouth, along the northeast side of Cockspur Island, and up the 
direct course of the main northern channel, along the northern side of 
Hutchinson’s Island, opposite the town of Savannah, to the upper end of 
the said island, and from thence up the bed or principal stream of the said 
river to the confluence of the rivers Tugoloo and Keowee, and from the 
confluence up the channel of the most northern stream of Tugoloo River 
to its source, and back again by the same channel to the Atlantic Ocean, 
is hereby declared to be henceforth equally free to the citizens of both 
States, and exempt from all duties, tolls, hinderance, interruption, or 
molestation whatsoever attempted to be enforced by one State on the 
citizens of the other, and all the rest of the river Savannah to the south¬ 
ward of the foregoing description is acknowledged to be the exclusive 
right of the State of Georgia.” 

Congress enacted June 23, 1874: “That the following sums of money 
be, and are hereby, appropriated to be paid out of any money in the 
Treasury not otherwise appropriated to be expended under the direction 
of the Secretary of War, for the repair, preservation, and completion of 
the following public works hereinafter named :” 

“For continuing the improvement of the harbor at Savannah, $50,000:” 
18 Stat., 240. 

The act of March 3, 1875 (18 Id., 459), contains the following ap¬ 
propriation: “For the improvement of the harbor at Savannah, Ga., 
$70,000.” 

The^ work which the bill seeks to arrest is doing pursuant to the 
authority conferred by these acts. 


86 


The Savannah River, where it flows past the city of Savannah, is 
divided into two channels by Hutchinson’s Island, which extends above 
and below the city, with a length of about 6 miles, and a width, where 
widest, of 1 mile or more. Of these channels, the more northerly is 
known as Back River, whilst that which passes immediately by the city 
of Savannah is called Front River. 

The improvement consists in the construction of a crib dam at a point 
known as the “Cross Tides,” for the purpose, by diverting a sufficient 
quantity of the water passing through the Back River into the front 
River channel, of securing to the city a depth of 15 feet at low water. 

Mr. William Henry Trescot and Mr. Philip Phillips for the com¬ 
plainant. 

1. The terms of the treaty of Beaufort are perpetual: Biordan & Duane, 
U. S. Laws, vol. i; 1 Stat., So. Ca.; Wheaton’s Int. Law, pt. 2, c. 2, 
sect. 268; Heffter, Droit Int., 170; Chirac v. Chirac, 2 Wheat., 259; 
Chappell’s Historical Mis. of Georgia, pt. 2, 65; Bancroft, vol. viii, 137; 
vol. ix, 257; Articles of Confederation, Amer. Archives, vol. iv, 352-359. 

2. Georgia and South Carolina were competent to execute that treaty : 
Articles of Confederation; Harcourt v. Gaillard, 12 Wheat., 523; 
Spooner v. McConnell, 1 McLean, 347; Journal American Congress, 
vol. iv; 2 Stat., 57. 

3. The adoption of the Federal Constitution did not abrogate the 
treaty: Constitution of United States; Spooner v. McConnell, supra; 
Ordinance of 1787; Wilson v. Blackbird Creek Co., 3 Pet., 245; Hogg 
v. Zanesville Manuf. Co., 5 Ohio, 410; Woodbourn v. Kilbourn Manuf. 
Co., 1 Abb., 158; Pollard v. Hogan’s Lessee, 3 How., 212; Permolli v. 
First Municipality, Id., 589; Strader v. Graham, 10 Id., 82; Dred Scott, 
19 Id., 396; Howard v. Ingersoll, 13 Id., 405.; American State Papers, 
Public Lands, vol. i, 103; President’s Message, 1835, Dec. 8, Senate 
Doc. 1, p. 108; Engineer Report, 1838, MSS.; President’s Message, 
February, 1840, Doc. 2; Id. July, 1850, Ex. Doc., 19; Appropriation 
Acts, 1828-73; Annual Report, Gen. Gilmore, 1873, pp. 16, 17; Gilman 
v. Philadelphia, 3 Wall., 928; Fowler v. Lindsey, 3 Dali., 411. 

4. The acts of Congress should be so construed and executed as not 
to invade the rights of the State under the Compact (Aldridge v. Williams, 
3 How., 24; Savings Bank v. United States, 19 Wall., 237; Fisher v. 
United States, 2 Cranch, 385; United States v. Kirby, 7 Wall., 486; 
Dash v. Vankleek, 7 Johns, 502; Cohens v. Virginia, 6 Wheat., 264; 
Comm. v. Dounes, 24 Pick., 230), or to give preference to the ports of 
one State over those of another. 


87 


5. The State is the proper party complainant: Georgetown v. Canal 
Co., 12 Pet., 91; Cohens v. Virginia, 6 Wheat., 264; Georgia v. Stanton, 
6 Wall., 75. 

6. The equity side of the court is properly invoked: Wheeling Bridge 
Case, 13 How., 560; Georgetown v. Canal Co., supra. 

7. The court will not enter into the question as to the degree of the ob¬ 
struction: Green v. Biddle, 8 Wheat,, 2; King v. Ward, 4 Ad. & El 
384. 

Mr. Solicitor-General Phillips, contra. 

1. South Carolina and Georgia, by becoming members of the Union, 
stripped themselves of all power under the second article of their agree¬ 
ment of 1787, when the United States undertook to regulate the naviga¬ 
tion of the river. Both States were, thereafter, excluded from inter¬ 
ference with it: Cooley v. Board of Wardens of Port of Philadelphia 
et al., 12 How., 299; Gilman v. Philadelphia, 3 Wall., 713; Crandall v. 
State of Nevada, 9 Id., 35. 

2. That agreement confers no present rights upon citizens of South 
Carolina to navigate the Savannah. Their rights, in common with those 
of all citizens of the United States, are perfect under the Constitution, and 
can not be vindicated by a suit in the name of the State. 

3. When a State brings suit in a court of the United States, it appears 
in its private capacity, is treated as other litigants, and must make out such 
a cause of action as would entitle them, under the same circumstances, to 
recover: Pennsylvania v. The Wheeling and Belmont Bridge Co., 18 
How., 518; City of Georgetown v. The Alexandria Canal Co., 12 Pet., 
91. The property rights of South Carolina are not involved, and there 
is no pretence of any apprehended damage to them by reason of this pre¬ 
tended obstruction. The only ground of complaint is, that the interests 
of her citizens may be thereby injuriously affected. 

4. The navigation of the Savannah River will not be obstructed by the 
contemplated mode of improvement. The plan therefor adopted after 
thorough examination by experienced and skilful engineers, and approved 
by the appropriate committees of the two Houses, received the ultimate 
sanction of Congress. That body has the unquestionable power to im¬ 
prove the navigable waters of the"United States, and is the exclusive judge 
of the most expedient mode of exercising it. Full discretion in the ex¬ 
penditure of the sum appropriated has been confided to the Secretary of 
War, who will carry out that plan. It is an idle pretence, that, by so 
doing, preference will be given to the ports of one State over those of an¬ 
other. 


88 


Mr. Justice Strong delivered the opinion of the court. 

We do not perceive that, in this suit, the State of South Carolina stands 
in any better position than that which she would occupy if the compact 
of 1787 between herself and Georgia had never been made. That com¬ 
pact defined the boundary between the two States as the most northern 
branch or stream of the river Savannah from the sea, or mouth of the 
stream, to the fork or confluence of the rivers then called Tugoloo and 
Keowee. The second article declared that the navigation of the river 
Savannah, at and from the bar and mouth, along the northeast side of 
Cockspur Island, and up the direct course of the main northern channel, 
along the northern side of Hutchinson’s Island, opposite the town of 
Savannah, to the upper end of said island, and from thence up the bed or 
principal stream of the said river to the confluence of the rivers Tugoloo 
and Keowee, * * * should thenceforth be equally free to the citizens of 
both States, and exempt from all duties, tolls, hinderance, interruption, or 
molestation whatsoever, attempted to be enforced by one State on the 
citizens of the other. Undoubtedly this assured to the citizens of the 
two States the free and unobstructed navigation of the channel described, 
precisely the same right which they would have possessed had the original 
charters of the two provinces, Georgia and South Carolina, fixed the 
Savannah River as the boundary between them. It needed no compact 
to give to the citizens of adjoining States a right to the free and unob¬ 
structed navigation of a navigable river, which was the boundary between 
them. But it matters not to this case how the right was acquired, 
whether under the compact or not, or what the extent of the right of 
South Carolina was in 1787. After the treaty between the two States 
was made, both the parties to it became members of the United States. 
Both adopted the Federal Constitution, and thereby joined in delegating 
to the general government the right to “regulate commerce with foreign 
nations, and among the several States.” Whatever, therefore, may have 
been their rights in the navigation of the Savannah River before they en¬ 
tered the Union, either as between themselves or against others, they both 
agreed that Congress might thereafter do everything which is within the 
power thus delegated. That the power to regulate interstate commerce, 
and commerce with foreign nations, conferred upon Congress by the Con¬ 
stitution, extends to the control of navigable rivers between States—rivers 
that are accessible from other States, at least to the extent of improving 
their navigability—has not been questioned during the argument, nor 
could it be with any show of reason. From an early period in the history 
of the Government,'it has been so understood and determined. Prior 
to the adoption of the Federal Constitution, the States of South Car- 


89 


ol ina and Georgia together had complete dominion over the naviga¬ 
tion of the Savannah River. By mutual agreement they might have 
regulated it as they pleased. It was in their power to prescribe, not 
merely on what conditions commerce might be conducted upon the 
stream, but also how the river might be navigated, and whether it 
might be navigated at all. They could have determined that all ves¬ 
sels passing up and down the stream should pursue a defined course, 
and that they should pass along one channel rather than another, 
where there were two. They had plenary authority to make improve¬ 
ments in the bed of the river, to divert the water from one channel to 
another, and to plant obstructions therein at their will. This will 
not be denied; but the power to "regulate commerce,” conferred by 
the Constitution upon Congress, is that which previously existed in 
the States. As was said in Gilman v. Philadelphia, 3 Wall., 724, 
"Commerce includes navigation. The power to regulate commerce 
comprehends the control for that purpose, and to the extent neces¬ 
sary, of all the navigable rivers of the United States which are ac¬ 
cessible from a State other than those in which they lie. For this 
purpose they are the public property of the nation, and subject to all 
the requisite legislation by Congress. This necessarily includes the 
power to keep these open and free from any obstruction to their navi¬ 
gation interposed by the States, or otherwise; to remove such obstruc¬ 
tions where they exist; and to provide, by such sanctions as they may 
deem proper, against the occurrence of the evil and for the punish¬ 
ment of the offenders. For these purposes Congress possesses all the 
powers which existed in the States before the adoption of the national 
Constitution, and which have always existed in the Parliament in 
England.” Such has uniformly been the construction given to that 
clause of the Constitution which confers upon Congress the power to 
regulate commerce. 

But it is insisted, on behalf of the complainant, that, though Con¬ 
gress may have the power to remove obstructions in the navigable 
waters of the United States, it has no right to authorize placing ob¬ 
structions therein; that while it may improve navigation, it may not 
impede or destroy it. Were this conceded, it could not affect our 
judgment of the present case. The record exhibits that immediately 
above the city of Savannah the river is divided by Hutchinson’s Island, 
and that there is a natural channel on each side of the island, both 
uniting at the head. The obstruction complained of is at the point 
of divergence of the two channels, and its purpose and probable effect 
are to improve the southern channel at the expense of the northern, 


90 


by increasing the flow of the water through the former, thus increas¬ 
ing its depth and waterway, as also the scouring effects of the current. 
The action of the defendants is not, therefore, the destruction of the 
navigation of the river. True, it is obstructing the waterway of one 
of its channels, and compelling navigation to use the other channel; 
but it is a means employed to render navigation of the river more 
convenient—a mode of improvement not uncommon. The two chan¬ 
nels are not two rivers, and closing one for the improvement of the 
other is in no just or legal sense destroying or impeding the naviga¬ 
tion. If it were, every structure erected in the bed of the river, 
whether in the channel or not, would be an obstruction. It might 
be a light-house erected on a submerged sand bank, or a jetty pushed 
out into the stream to narrow the waterway, and increase the depth 
of water and the direction and the force of the current, or the pier of 
a bridge standing where vessels now pass, and where they can pass 
only at very high tide. The impediments to navigation caused by 
such structures are, it is true, in one sense, obstructions to naviga¬ 
tion; but, so far as they tend to facilitate commerce, it is not claimed 
that they are unlawful. In what respect, except in degree, do they 
differ from the acts and constructions of which the plaintiff com¬ 
plains? All of them are obstructions to the natural flow of the river, 
yet all, except the pier, are improvements to its navigability, and con¬ 
sequently they add new facilities to the conduct of commerce. It is 
not, however, to be conceded that Congress has no power to order ob¬ 
structions to be placed in the navigable waters of the United States, 
either to assist navigation or to change its direction by forcing it into 
one channel of a river rather than the other. It may build light-houses 
in the bed of the stream. It may construct jetties. It may require 
all navigators to pass along a prescribed channel, and may close any 
other channel to their passage. If, as we have said, the United States 
have succeeded to the power and rights of the several States, so far as 
control over interstate and foreign commerce is concerned, this is not 
to be doubted. Might not the States of South Carolina and Georgia, 
by mutual agreement, have constructed a dam across the cross-tides 
between Hutchinson and Argyle islands, and thus have confined the 
navigation of the Savannah River to the southern channel? Might 
they not have done this before they surrendered to the Federal Gov¬ 
ernment a portion of their sovereignty? Might they not have con¬ 
structed jetties, or manipulated the river, so that commerce could 
have been carried on exclusively through the southern channel, on the 
south side of Hutchinson’s Island? It is not thought that these ques- 


91 


tions can be answered in the negative. Then why may not Congress, 
succeeding, as it has done, to the authority of the State, do the same 
thing? Why may it not confine the navigation of the river to the 
channel south of Hutchinson’s Island? And why is this not a regu¬ 
lation of commerce, if commerce includes navigation? We think it 
is such a regulation. 

Upon this subject the case of Pennsylvania v. The Wheeling and 
Belmont Bridge Co., 18 How., 421, is instructive. There it was 
ruled that the power of Congress to regulate commerce includes the 
regulation of intercourse and navigation, and consequently the power 
to determine what shall or shall not be deemed, in the judgment of law , 
an obstruction of navigation. It was, therefore, decided that an act 
of Congress declaring a bridge over the Ohio River, which in fact did 
impede steamboat navigation, to be a lawful structure, and requiring 
the officers and crews of vessels navigating the river to regulate their 
vessels so as not to interfere with the elevation and construction of 
the bridge, was a legitimate exercise of the power of Congress to reg¬ 
ulate commerce. 

It was further ruled that the act was not in conflict with the pro¬ 
vision of the Constitution, which declares that no preference shall be 
given by any regulation of commerce or revenue to the ports of one 
State over those of another. The judgment in that case is, also, a 
sufficient answer to the claim made by the present complainant, that 
closing the channel on the South Carolina side of Hutchinson’s Island 
is a preference given to the ports of Georgia forbidden by this clause 
of the Constitution. It was there said that the prohibition of such a 
preference does not extend to acts which may directly benefit the ports 
of one State and only incidently injuriously effect those of another, 
such as the improvement of rivers and harbors, the erection of light¬ 
houses, and other facilities ot commerce. "It will not do,” said the 
court, "to say that the exercise of an admitted power of Congress 
conferred by the Constitution is to be withheld, if it appears or can 
be shown that the effect and operation of the law may incidentally 
extend beyond the limitation of the power.” The case of The Clin¬ 
ton Bridge, 10 Wall., 454, is in full accord with this decision. It 
asserts plainly the power of Congress to declare what is and what is 
not an illegal obstruction in a navigable stream. 

The plaintiff next contends that if Congress has the power to au¬ 
thorize the construction of the work in contemplation and in progress, 
whereby the water will be diverted from the northern into the southern 
channel of the river, no such authority has been given. With this we 


92 


can not concur. By an act of Congress of June 23, 1874, an appro¬ 
priation was made of $50,000, to be expended under the direction of 
the Secretary of War, for the repairs, preservation, and completion of 
certain public works, and, inter alia, "for the improvement of the 
harbor of Savannah.’’ The act of March 3, 1875, made an additional 
appropriation of $70,000, "for the improvement of the harbor of 
Savannah, Georgia.” It is true that neither of these acts directed 
the manner in which these appropriations should be expended. The 
mode of improving the harbor was left to the discretion of the Secre¬ 
tary of War, and the mode adopted under his supervision plainly tends 
to the improvement contemplated. We know judicially the fact that 
the harbor is the river in front of the city, and the case, as exhibited 
by the pleadings, reveals that the acts of which the plaintiff complains 
tend directly to increase the volume of water in the channel opposite 
the city, as well as the width of the waterway. Without relying at 
all upon the report of the engineers, which was before Congress, and 
which recommended precisely what was done, we can come to no 
other conclusion than that the defendants are acting within the au¬ 
thority of the statutes, and that the structure at the cross-tides in¬ 
tended to divert the water from the northern channel into the southern 
is, in the judgment of the law, no illegal obstruction. The plaintiff 
has, therefore, made no case sufficient to justify an injunction, even 
if the State is in a position to ask for it. 

But, in resting our judgment upon this ground, we are not to be 
understood as admitting that a State, when suing in this court for the 
prevention of a nuisance in a navigable river of the United States, 
must not aver and show that it will sustain some special and peculiar 
injury therefrom, such as would enable a private person to maintain 
a similar action in another court. Upon that subject we express no 
opinion. It is sufficient for the present case to hold, as we do, that 
the acts of the defendants, of which South Carolina complains, are 
not unlawful, and consequently that there is no nuisance against 
which an injunction should be granted. 

The special injunction heretofore ordered is dissolved, and the— 

Bill dismissed. 

U. S. Reports, Supreme Court, Vol. 93, pp. 4-14. 


GIBSON v. UNITED STATES. 

Appeal From the Court of Claims. No. 155. Argued January 15, 1897. De- 
cided March 22, 1897. 

Riparian ownership on navigable waters is subject to the obligation 
to suffer the consequences of an improvement of the navigation, under 
an act of Congress, passed in the exercise of the dominant right of the 
Government in that regard; and damages resulting from the prosecu¬ 
tion of such an improvement can not be recovered in the Court of 
Claims. 

STATEMENT OF THE CASE. 

This was a petition to recover damages because of the construction 
of a dike by the United States in the Ohio River at a point off Neville 
Island, about 9 miles west of the city of Pittsburg. The Court 
of Claims made the following findings of fact: 

"I. In the year 1885, and before, the claimant was the owner in 
her own right and in possession of a tract of land containing about 
20 acres, situate on Neville Island, in the Ohio River, 9 miles be¬ 
low the city of Pittsburg, in the county of Allegheny and State of 
Pennsylvania. 

"II. The claimant’s land, at the time of the alleged grievance, 
was in a high state of cultivation, well improved with a good dwell¬ 
ing house, barn and other outbuildings. The claimant was in the 
year 1885, and is now, engaged in market gardening, cultivating and 
shipping strawberries, raspberries, potatoes, melons, apples, peaches, 
etc., to the cities of Pittsburg and Allegheny, Pa., for sale. 

"III. The claimant’s farm has a frontage of 1000 feet on the north, 
or main navigable, channel of the Ohio River, where the claimant 
has a landing, which was used in shipping the products from, and 
the supplies to, her said farm; that the said farm extends across the 
said Neville Island in a southwesterly direction to the south channel 
of said Ohio River, which is not navigable; that the said landing is 
the only one on claimant’s farm from which she can ship the products 
from, and supplies to, her farm. 

"IV. Congress, by the river and harbor acts of July 5, 1884, 23 
Stat., 133, 147, and August 5, 1886, 24 Stat., 310, 327, authorized 
and directed the improvement of the said Ohio River as follows: 

" 'Improving the Ohio River: Continuing improvement, six hun¬ 
dred thousand dollars’ * * * (act 1884). 


94 


" 'Improving the Ohio River: Continuing improvement, three hun¬ 
dred and seventy-five thousand ($375,000) dollars’ ' J ' ^ * (act 1886). 

"Under said authority Lieut. Col. William E. Merrill, of the engi¬ 
neer corps of the U. S. Army, by the direction of the chief of engi¬ 
neers of the U, S. Army,and the Secretary of War, commenced, June 
17, 1885, the construction of a dike 2200 feet in length to concentrate 
the water-flow in the main channel of the Ohio River, beginning at 
a point on said Neville Island 400 feet east of the claimant’s farm and 
running in a northwesterly direction with the main or navigable 
channel of the said Ohio River to the outer point of a bar in said river 
known as Merriman’s bar, contiguous to and extending into the said 
river from the northwest point of claimant’s farm; that the said dike 
has been completed to, and beyond, the northeastern point of said 
Merriman’s bar. 

"V. The construction of said dike by the United States for the 
purpose aforesaid has substantially destroyed the landing of the claim¬ 
ant, by preventing the free egress and ingress to and from said landing 
on and in front of the claimant’s farm, to the main or navigable 
channel of said river. 

"The claimant is unable to use her landing for the shipment of 
products from, and supplies to, her farm for the greater part of the 
gardening season on account of said dike obstructing the passage of 
the boats; that she can only use the said landing at a high stage of 
water. That during the ordinary stage of water, the claimant can 
not get the products off, or the supplies to, her farm, without going over 
the farms of her neighbors to reach another landing. 

"VI. The claimant’s land was worth $600 per acre before the con¬ 
struction of the said dike; that it is now greatly reduced in value 
(from $150 to $200 per acre) by the obstruction caused by said dike; 
that the damage to the claimant’s farm exceeds the sum of $3000. 

"VII. Claimant’s access to the navigable portion of the stream 
was not entirely cut off; at a 9-foot stage of the water, which fre¬ 
quently occurs during November, December, March, April and May, 
she could get into her dock in any manner; that from a 3-foot stage 
she could communicate with the navigable channel through the chute; 
that at any time she could haul out to the channel by wagon. 

"VIII. There was no water thrown back on claimant’s land by the 
building of said dike, and that said dike has not itself come into 
physical contact with claimant’s land and has not been the cause of 
any such physical contact in any other way. In making the improve¬ 
ment the defendants did not recognize any right of property in the 


95 


claimant, in and to the right alleged to be affected, did not attempt 
or assume to take private property in and by the construction of the 
dike, but proceeded in the exercise of a claimed right to improve the 
navigation of the river.” 

And upon these findings, the court held, as a conclusion of law, 
that the claimant was not entitled to recover, and dismissed the peti¬ 
tion. 

The opinion of the court by Weldon, J., discusses the case at length, 
citing many decisions, and maintains the conclusion on the grounds 
that the court had no jurisdiction; and that, if it had, there still 
could be no recovery because the United States were not responsible 
to claimant for injuries suffered in the use and occupation of her 
property in consequence of the construction of the works: 29 C. Cl.,18. 

Mr. T. H. N. McPherson (with whom was Mr. N. W. Shafer on 
the brief) for appellant. 

Mr. Assistant Attorney-General Dodge for appellees. 

OPINION OF THE COURT. 

Mr. Chief Justice Fuller delivered the opinion of the court. 

All navigable waters are under the control of the United States for the 
purpose of regulating and improving navigation, and although the title 
to the shore and submerged soil is in the various States and individual 
owners under them, it is always subject to the servitude in respect of 
navigation created in favor of the Federal Government by the Consti¬ 
tution: South Carolina v. Georgia, 93 U. S., 4; Shively v. Bowlby, 
152 U. S., 1; Eldridge v. Trezevant, 160 U. S., 452. 

In South Carolina v. Georgia, a proposed improvement of the Savan¬ 
nah River consisted of the practical closing of one channel around 
an island and the throwing of water into other channels, to the sub¬ 
stantial improvement of the harbor of Savannah. This court held 
that, in view of the general rule, although structures deemed by Con¬ 
gress to be in aid of navigation might in fact be in obstruction of cer¬ 
tain methods of navigation of the particular stream, their construction 
was, nevertheless, within the Federal power, and Mr. Justice Strong, 
delivering the opinion of the court, said: ”It is not, however, to be 
conceded that Congress has no power to order obstructions to be placed 
in the navigable waters of the United States, either to assist naviga¬ 
tion or to change its direction by forcing it into one channel of a 
river rather than the other. It may build light-houses in the bed of 
the stream. It may construct jetties. It may require all navigators 
to pass along a prescribed channel, and may close any other channel 


96 


£<3 their passage. If, as we have said, the United States have succeeded 
to the power and rights of the several States, so far as control over 
interstate and foreign commerce is concerned, this is not to be doubted. 
* * * Upon this subject the case of Pennsylvania v. The Wheeling 
and Belmont Bridge Co,, 18 How,, 421, is instructive. There it 
was ruled that the power of Congress to regulate commerce includes 
the regulation of intercourse and navigation, and consequently the 
power to determine what shall or shall not be deemed, in the judg¬ 
ment of law, an obstruction of navigation. * * * The case of 

The Clinton Bridge, 10 Wall., 454, is in full accord with this decision. 
It asserts plainly the power of Congress to declare what is and what 
is not an illegal obstruction in a navigable stream.” 

In Shively v. Bowlby, the leading authorities of the courts of the 
United States and most of the States, and of Great Britain, as to the 
character of the title to submerged land, are considered, and the con¬ 
clusion announced that the title is in each State, with full power in 
the State legislature to confer it on individuals, subject at all times 
to the servitude of the Federal Government for regulation and im¬ 
provement of navigation. 

In Eldridge v. Trezevant, the doctrine existing in the State of 
Louisiana that lands abutting on the rivers and bayous were subject 
to a servitude in favor of the public, whereby such portions thereof as 
were necessary for the purpose of making and repairing public levees 
might be taken, in pursuance of law, without compensation, was 
fully recognized as enforceable notwithstanding the Fourteenth 
Amendment. 

By the established law of Pennsylvania, as observed by Mr. Justice 
Gray in Shively v. Bowlby, "the owner of lands bounded by navigable 
water has the title in the soil between high and low water mark, sub¬ 
ject to the public right of navigation, and to the authority of the 
legislature to make public improvements upon it, and to regulate his 
use of it.” 

The constitution of that State, prior to 1873, provided that no 
man’s property could "be taken or applied to public use without the 
consent of his representatives and without just compensation being 
made. ” 

In Monongahela Navigation Co. v. Coons, 6 Watts & Searg., 101, 
plaintiff’s mill site was destroyed by the backing up of water by a dam 
built by a canal company under authority of law for the improvement 
of navigation, and the Supreme Court of Pennsylvania held this to be 
a mere consequential damage resulting from the exercise of the public 


97 


right to improve navigation; that it was damnum absque injuria; and 
that such flooding and injury did not amount to a taking under the 
constitution. 

In the opinion of the court it was stated by Chief Justice Gibson: 

"It can not be said that the plaintiff’s mill was taken or applied, in 
any legitimate sense, by the State, or by the company invested with 
its power; nor can it be said that he was deprived of it. In the case 
of the Philadelphia and Trenton Railroad, 6 Whart., 25, the words 
in the first paragraph were allowed to have their obvious and popular 
meaning, so as to be restrained to property taken away, and not ex¬ 
tended to property injured by an act which did not amount to an 
assumption of the possession; * * * 

"Still, it is only to a case of taking that the obligation extends; 
and when a corporation acts by virtue of a constitutional law, it is 
subject to no other responsibility for acts of consequential damage, 
than is specially provided for. * * * 

"It is not, therefore, enough to set before us a case of moral wrong, 
without showing us that we have legal power to redress it. Beyond 
constitutional restraint or legislative power, there is none but the 
legislative will, tempered by its sense of justice, which has happily 
been sufficient, in most cases, to protect the citizen. Compensation 
has been provided for every injury which could be foreseen, whether 
within the constitutional injunction or not, in all laws for public 
works by the State or a corporation; though cases of damage have oc¬ 
curred which could neither be anticipated nor brought within the 
benefit of the provision by the most strained construction. In one 
instance, a profitable ferry on the Susquehanna, at its confluence with 
the Juniata, was destroyed by the Pennsylvania canal; and, in another, 
an invaluable spring of water, at the margin of the river, near Selins- 
grove, was drowned. These losses, like casualties in the prosecution 
of every public work, are accidental, but unavoidable; and they are 
but samples of a multitude of others." 

Numerous subsequent cases sustain the rule thus laid down, which 
is, indeed, the general rule upon the subject. 

The Pennsylvania constitution of 1873 contained this additional 
provision: "Municipal and other corporations and individuals, in¬ 
vested with the privilege of taking private property for public use, 
shall make just compensation for property taken, injured or destroyed, 
by the construction or enlargement of their works, highways or 
improvements, which compensation shall be paid or secured before 
such taking, injury or destruction;" and in Pennsylvania Co. v. 


98 


Marchant, 119 Penn. St., 541, it was ruled that this had relation to 
such injuries to one’s property as were the natural and necessary re¬ 
sults of the original construction or enlargement of its works by a 
corporation, and not of their subsequent operation: S. C., 153 U. S., 
380. 

The Fifth Amendment to the Constitution of the United States 
provides that private property shall not "be taken for public use with¬ 
out just compensation.” Here, however, the damage of which Mrs. 
Gibson complained was not the result of the taking of any part of her 
property, whether upland or submerged, or a direct invasion thereof, 
but the incidental consequence of the lawful- and proper exercise of a 
governmental power. 

The applicable principle is expounded in Transportation Co. v. 
Chicago, 99 U. S., 635. In that case, plaintiff being an owner of 
lands situated at the intersection of La Salle street, in Chicago, with 
the Chicago River, upon which it had valuable dock and warehouse 
accommodations, with a numerous line of steamers accustomed to 
land at that dock, was interrupted in his use thereof by the building 
of a tunnel under the Chicago River by authority of the State legis¬ 
lature, in accomplishing which work it was necessary to tear up La 
Salle street, which precluded plaintiff from access to his property for 
a considerable time; also to build a cofferdam in the Chicago River, 
which excluded his vessels from access to his docks; and such an in¬ 
jury was held to be damnum absque injuria. This court said, again 
speaking through Mr. Justice Strong: "But acts done in the proper 
exercise of governmental powers, and not directly encroaching upon 
private property, though their consequences may impair its use, are 
universally held not to be a taking within the meaning of the consti¬ 
tutional provision. They do not entitle the owner of such property 
to compensation from the State or its agents, or give him any right 
of action. This is supported by an immense weight of authority. 
Those who are curious to see the decisions will find them collected 
in Cooley on Constitutional Limitations, page 542, and notes. The 
extremest qualification of the doctrine is to be found, perhaps, in 
Pumpelly v. Green Bay Company, 13 Wall., 166, and in Eaton v. 
Boston, Concord &c. Railroad, 51 N. H., 504. In those cases it was 
held that permanent flooding of private property may be regarded as a 
'taking.’ In those cases there was a physical invasion of the real 
estate of the private owner, and a practical ouster of his possession. 
But in the present case there was no such invasion. No entry was 


99 


made upon the plaintiff’s lot. All that was done was to render for a 
time its use more inconvenient.” 

Moreover, riparian ownership is subject to the obligation to suffer 
the consequences of the improvement of navigation in the exercise of 
the dominant right of the Government in that regard. The legislative 
authority for these works consisted simply in an appropriation for 
their construction, but this was an assertion of a right belonging to 
the Government, to which riparian property was subject, and not of 
a right to appropriate private property, not burdened with such servi¬ 
tude, to public purposes. 

In short, the damage resulting from the prosecution of this im¬ 
provement of a navigable highway, for the public good, was not the 
result of a taking of appellant’s property, and was merely incidental 
to the exercise of a servitude to which her property had always been 
subject. 

Judgment affirmed. 

U. S. Reports, Supreme Court, Vol. 166, pp. 269-276. 


SCRANTON v. WHEELER. 

Error to the Supreme Court of the State of Michigan. No. 9. Argued October 
16, 1899. Decided November 12, 1900. 

The prohibition in the Constitution of the United States of the taking 
of private property for public use without just compensation has no ap¬ 
plication to the case of an owner of land bordering on a public navigable 
river, whose access from his land to navigability is permanently lost by 
reason of the construction, under authority of Congress, of a pier resting 
on submerged lands away from, but in front of his upland, and which 
pier was erected by the United States, not with any intent to impair the 
right of riparian owners, but for the purpose only of improving the 
navigation of such river. 

It was not intended, by that provision in the Constitution, that the 
paramount authority of Congress to improve the navigation of the public 
waters of the United States should be crippled by compelling the Gov¬ 
ernment to make compensation for an injury to a riparian owner’s right 
of access to navigability that might incidently result from an improv- 
ment ordered by Congress. 

The State courts of Michigan have recognized this action as a proper 
one under the laws of that State for the relief sought by the plaintiff; this 
court has jurisdiction to consider the questions of a Federal nature 
decided herein. 

STATEMENT OF THE CASE. 

This writ of error brings up for review a final judgment of the Supreme 
Court of Michigan holding that the United States is not required to 
compensate an owner of land fronting on a public navigable river when 
his right of access from the shore to the navigable part of such river is 
permanently obstructed by a pier erected in the river under the authority 
of Congress for the purpose only of improving navigation. 

Omitting any reference to immaterial matters, the case as made by the 
pleadings and evidence is as follows: 

By an act of Congress approved September 26, 1850, c. 71, providing 
for the examination and settlement of claims for land at the Sault Ste. 
Marie in Michigan, the local register and receiver of the land office were 
authorized to report upon claims to lots at that place under instructions 
to be given by the Commissioner of the General Land Office: 9 Stat., 

469. 


101 


In conformity with proceedings under that act the heirs of Franklin 
Newcomb and Samuel Peck were confirmed in their claim jointly to 
premises known as Private Land Claim No. 3, and a patent was issued 
to them by the United States on the 6th day of October, 1874. The 
premises were at the west or upper end of the St. Mary’s Falls Ship 
Canal, and one of the boundaries, as shown by the field notes, was 
along the right bank of the Ste. Marie River.” By mesne conveyances 
from the heirs of Franklin Newcomb the plaintiff, Scranton, became the 
owner of an undivided half of the land in question. 

By an act approved August 26, 1852, c. 92, Congress granted to the 
State of Michigan the right to locate a canal through the public lands 
in that State known as the military reservation at the falls of St. 
Mary’s River, and 400 feet of land in width extending along the line of 
the canal was granted for the construction and convenience of the canal 
and the appurtenances thereto, the use being vested in the State for such 
purposes and no other. The act provided that the canal should be 
located on the line of the survey made for that purpose or on such other 
route between the waters above and below the falls as might be selected 
with the approval of the Secretary of War. In aid of the construction 
and completion of the canal Congress also granted to the State seven 
hundred and fifty thousand acres of public lands, and it was provided that 
the canal should be and remain a public highway for the use of the 
United States, free from toll or other charge upon the vessels of the Gov¬ 
ernment engaged in the public service or upon vessels employed in the 
transportation of property or troops of the United States: 10 Stat., 35. 

The construction of the canal was begun by Michigan in 1853 and 
completed in 1855. It was owned and operated by the State until the 
year 1881, when it was transferred to the United States in conformity 
with the River and Harbor Act of June 14, 1880, c. 211, by which 
$250,000 was appropriated for improving and operating the river and the 
canal, and by which also the Secretary of War was authorized to accept 
on behalf of the United States from the State of Michigan the St. Mary’s 
Canal and the public works thereon—the transfer to be so made as to 
leave the United States free from all debts, claims or liability of any 
character whatsoever, and the canal after the transfer to be free for public 
use. By the same act the Secretary of War was authorized, such transfer 
being made, to draw from time to time his warrant on the Treasury to 
pay the actual expenses of operating and keeping the canal in repair: 21 
Stat., 180, 189. 

Prior to the transfer Congress had made large appropriations for the 
repair, preservation, improvement and completion of the canal: 16 Stat., 


102 


224, c. 240; 16 Stat., 402, c. 34; 18 Star., 238, c. 457; 18 Stat., 456, c. 
134; 19 Stat., 136, c. 267; 20 Stat., 156, c. 264; 20 Stat., 369, c. 181; 
21 Stat., 189, c. 211. 

As originally constructed, a pier extended from the west end of the 
canal into the water, curving to the north. This pier was opposite to a 
part of Private Land Claim No. 3, but left at that time a riparian front¬ 
age for those premises of from three to four hundred feet. 

In 1877 the United States commenced and in 1881 completed the 
construction in the water of what is known as the New South Pier, 
which extended across the entire front of Private Land Claim No. 3 and 
was within the riparian ownership of the plaintiff as projected from the 
land towards the middle thread of the stream. The effect of the con¬ 
struction of this new pier was to exclude the plaintiff altogether from 
access from his land within the lateral lines of his riparian ownership^ 
projected as aforesaid, to the navigable water or to the channel of the 
river that was navigable. On both sides of the space included within 
such projected lines of the plaintiff’s riparian ownership and between the 
new pier and the bank of the river, the water was only 5 feet in depth ; 
so that by reason of the construction and maintenance of the pier the 
plaintiff was prevented from reaching navigable water of greater depth 
than 5 feet. 

The plaintiff desired to land freight on the New South Pier, and thus 
convey it to the lot in question. But he was prevented from doing so 
by the defendant Wheeler, superintendent of the property, who was in 
possession of and exercised exclusive control over the canal and the pier 
as an officer or agent of the United States, and not otherwise. 

No part of the pier in question in front of Private Land Claim No. 3 
rests upon the fast land within that claim, but entirely upon submerged 
lands in front of or opposite to the fast land. The water between the 
pier and dry land is very shoal. 

St. Mary’s River forms a part of the boundary line between the United 
States and Canada,'and where navigable forms, with the Great Lakes, a 
highway for interstate and international co.mmerce. Near the point in 
question the river was not originally navigable, owing to the falls, and 
the canal was built around the falls to connect its navigable parts above 
and below, and was used in connection therewith for the purposes of 
such commerce. 

The present action was brought by Scranton against Wheeler in the 
Circuit Court of Chippewa County, Michigan, the declaration alleging 
that the plaintiff was the owner in fee, but was illegally deprived by the 
defendant of the possession of his interest in “ Private Land Claim No. 3, 


103 


Whelpley’s survey, in the village of Sault Ste. Marie, Michigan, includ¬ 
ing therein that portion of the land beneath the water of St. Mary’s 
River from the river bank on said lot to the thread of the stream of said 
river, which forms a.part of said lot, and all riparian rights belonging and 
attaching thereto and being a part thereof;” which premises the plaintiff 
claimed in fee. The damages alleged were $35,000. 

Upon the petition of Wheeler, the action was removed for trial into 
the Circuit Court of the United States on the ground that the Govern¬ 
ment of the United States was the real part in interest, and that the 
defence depended upon the construction of the laws of the United States. 
In that court there was a judgment in his favor. The case was then 
carried to the Circuit Court of Appeals, where the judgment was affirmed, 
an elaborate opinion being delivered by Judge Lurton : 16 U. S. App., 
152; 57 Fed. Rep., 803. That court held: “That an officer of the 
United States could be sued in ejectment by one claiming the title and 
right of possession; that the case was properly removed to the Circuit 
Court for trial; that the Circuit Court of Appeals had jurisdiction under 
the act of March 3, 1891, c. 517, 26 Stat., 826, to review the judgment 
of the Circuit Court; and that as “an incident to ownership of lands on 
the margins of navigable streams, the law of Michigan attaches the legal 
title to the submerged lands under the stream comprehended within 
parallel lines extending perpendicular to the general trend of the shore 
along his land to the center of the stream.” After observing that although 
the plaintiff under the law of Michigan was seized of the legal title to the 
soil under the water, yet, in the very nature of the property, such seizure 
was of the bare technical title, the court proceeded: “It must, from these 
constitutional principles, follow that the State of Michigan held the soil 
beneath her navigable rivers under a high public trust, to forever preserve 
them free as public highways, subject only to the power of Congress to 
regulate commerce among the States. The legal title which, under her 
law, becomes vested in such proprietors, must be subject to the same 
public trusts, and therefore subordinate to the rights of navigation, and 
subordinate to the power of Congress to control and use the soil under 
such streams whenever the necessities of navigation and commerce should 
demand it. The right of Congress to regulate commerce, and, as an 
incident, navigation, remains unaffected by the question as to whether the 
title to the soil submerged is in the State or is in the owner of the shores. 
A distinction must be recognized between that which is jus privatum and 
that which is jus publicum. The private right is subordinate to the public 
right. The plaintiff holds the naked legal title, and with it he takes such 
proprietary rights as are consistent with the public right of navigation, 


104 


and the control of Congress over that right. * * " The significance of that 
case (Wilson v. Marsh Co., 2 Pet., 245), as it affects this, was the refusal 
to enjoin the erection of the bridge on the complaint of one owning land 
on the shores above, whose access to and use of the stream was thereby 
injured. His property had not been taken. The injury to him was con¬ 
sequential, and he was held to be without remedy. Here the plaintiff has 
sustained an injury which is wholly a consequence of the erection of a 
structure by Congress in aid of the general and public right of navigation. 
If Congress may lawfully use the soil as a support for such structures 
without acquiring the naked title outstanding in the. plaintiff, then, for 
such injuries as are merely consequential, it is a case of damage without 
an actionable injury. A distinction exists between those cases where, 
under authority of the State, a structure has been placed in a navigable 
stream, such as a bridge, or lock and dam, as an improvement to the 
navigation of a stream wholly within its borders, and which is sought to 
be removed under the authority of subsequent Congressional legislation. 
In such case, the improvement, being by authority of law, can only be 
taken for public uses upon just compensation. This is the doctrine of 
the case of Monongahela Navigation Co. v. United States, 148 U. S., 
312. In that case it was held that not only must the actual property of 
the owner in the structure, but his franchise also, must be paid for. The 
plaintiff in the case before us has made no improvements for either public 
or private uses. No property of his has been invaded, none has been 
taken. The title in him was subject to the public uses. He held the 
soil under the river subservient to the purposes of navigation. The right 
to regulate commerce involved the right to regulate navigation, and this, 
in turn, involves the necessary uses of the submerged lands, in so far as 
such use was essential to the maintenance of the public highway. * * * 
The conclusion that we have reached is that there is no error in the 
judgment of the Circuit Court. The plaintiff has no such ownership of 
the locus in quo as makes its use for the purposes to which it has been 
devoted a taking of private property within the meaning of the Con¬ 
stitution. ” 

Upon writ of error to this court the judgment of the Circuit Court of 
Appeals was reversed, upon the joint motion of the parties, with direc¬ 
tions to remand the case to the State court for trial. The parties con¬ 
curred in the opinion that the case was not removable from the State 
court: Tennessee v. Union and Planter’s Bank, 152 U. S., 454, and 
Chappell v. Waterworth, 155 U. S., 102, being cited by them in support 
of that view. 


105 


At the trial in the State court the plaintiff asked the court to charge 
the jury— 

That under the law of Michigan applicable to the facts in this case, 
the plaintiff was the owner of the submerged land in front of his up¬ 
land, bounded by lines extending from the lateral lines of the upland 
to the center file of the stream, and running at right angles with the 
course of the stream in front of the upland, and therefore that the 
land and property described in the declaration belonged to and was 
owned by the plaintiff in fee simple, and so belonged to him when 
the action was brought; 

That the pier or structure in question was constructed and was 
maintained by the defendant across plaintiff’s land without his con¬ 
sent and against his rights in the premises; 

That neither the defendant nor the United States had any lawful 
right to construct the pier on and across the premises in question, 
thus taking possession of the premises adversely to the plaintiff and 
excluding him from enjoyment thereof, and from all access from his 
land and premises to the navigable water of the river in front thereof, 
and from the navigable water of the river to his land; 

That neither the Government of the United States nor the defendant 
had any lawful right to so construct the pier or to maintain the same 
as was being done at the time suit was brought, and as they were now 
doing, without first having acquired the right to so construct and 
maintain the same from the owner of the fee, or without obtaining 
the right therefor by proceedings under the power of eminent domain 
on payment of due compensation to the owner of the land therefor; and. 

That under Article V of the Amendments to the Constitution of 
the United States the propertv in question could not lawfully be taken 
for the public use to which it was appropriated without just com¬ 
pensation having been made therefor to the owner or without due 
process of law. 

The plaintiff also requested this instruction: "The construction of 
this pier was in violation, and the maintaining of same was in viola¬ 
tion of, said Article V of the Amendments to the Constitution of the 
United States in this, that it appears from the testimony in the case 
that the same was appropriated without due process of law, and the 
same was taken and devoted to a public use without the consent of 
the owner thereof, and without just compensation therefor, and that 
the taking possession of the land of the plaintiff, as appears by the 
record, was in violation of said Article V; and that the taking pos¬ 
session of the land of the plaintiff and the construction of the pier 


106 


thereon, in the manner shown in this case, the effect of which was to 
deprive him of all egress from his said land to the navigable water of 
the stream, and to prevent him using his said property by passing over 
or across said pier, as shown in the testimony of the case, was in vio¬ 
lation of said Article-V of the Amendments to the Constitution of 
the United States, and as depriving the owner thereof of his property 
without due process of law, and without just compensation, and 
without his consent.” 

These instructions were severally refused, and to that action of the 
court the plaintiff excepted. 

In charging the jury the court stated that the United States Dis¬ 
trict Attorney had suggested in writing that the property in contro¬ 
versy, the title and possession of which were the subjects of this liti¬ 
gation, was and for many years had been in the possession of the 
United States through its officers and agents; that it was held for 
public uses in connection with the commerce and navigation of the 
Great Lakes; that the nominal defendant had no personal interest in 
the matter; that his physical possession of the premises was in his 
official capacity and in law the possession of the United States; that 
the United States had always held title to the said land, and now holds 
possession under its claim of title; that this action was in effect an 
action against the United States Government, which in its sovereign 
capacity could not be sued; and for these reasons the District Attorney 
asked that all proceedings be stayed and the suit dismissed. 

A verdict for the defendant was directed on the ground that, in 
legal effect, the action was against the United States and that a judg¬ 
ment for the plaintiff would be one against the Government and its 
property. 

In the Supreme Court of the State the failure of the trial court to 
charge the jury as requested by the plaintiff, and the direction to the 
jury to return a verdict for the defendant, were assigned for error. 
That court, all the justices concurring, held that the action was not 
against the United States, but affirmed the judgment upon other 
grounds. It said: "When one in the actual possession of property 
defends his right of possession upon the ground t'hat the Government, 
State or National, has placed him in possession, he must show that 
the right of the Government is paramount to the right of the plaintiff, 
or judgment will go against him. This point has been settled by the 
decision of the Supreme Court of the United States rendered May 10, 
1897: Tindal v. Wesley, 167 U. S., 204. In that case the authori¬ 
ties upon this point are reviewed at length, including the case of 


107 


Stanley v. Schwalby, 162 U. S., 255, upon which defendant mainly 
relies. The United States Government took possession of the sub¬ 
merged land of the plaintiff for the purpose of erecting thereon piers 
in aid of the immense navigation upon the Great Lakes and the rivers 
connecting them. That the improvements made were necessary to 
aid and protect this navigation is established beyond dispute. Had 
the Government the right to make these improvements upon the sub¬ 
merged land without compensation to the adjoining owner? It is 
conceded that under the law of Michigan the title to submerged land 
is in the adjoining owner to the thread of the stream. It is insisted 
in behalf of the plaintiff that the Government possesses no right to 
so use his land, although submerged, and although necessary to so use 
it in aid of navigation, as to cut off his access to the open water. It 
is contended on the other hand that this title to submerged lands along 
navigable waters, and the right of access thereto, are subject to the 
paramount right of the United States to use this land in such manner 
as they shall determine to be necessary in aid of navigation. The 
Court of Appeals was unanimous in its opinion against the plaintiff’s 
claim. In a very able opinion delivered by Judge Lurton the facts are 
clearly stated, the authorities cited, and we think the conclusion there 
reached is the correct one. We therefore deem it unnecessary for us 
to enter into a long discussion of the law and the authorities. The 
case of Hawkins Point Light-house, 39 Fed. Rep., 77, appears to be 
exactly in point, and to rule the present case. We think the conclu¬ 
sion reached by the court below was a correct one, although it gave a 
wrong reason:” 113 Mich., 565. 

The Hawkins Point Light-house case referred to in the opinion of 
the State court was ejectment brought in a Circuit Court of the 
United States against a Government keeper of a light-house to recover 
possession of such house, erected in the Patapsco River, a public navi¬ 
gable water of the United States, by the Light-house Board in pursu¬ 
ance of acts of Congress. There was no condemnation for public use 
of the lands upon which the light-house rested, nor was any compen¬ 
sation made to any one for the site. The plaintiff was the owner of 
the upland, but had not, in the exercise of his riparian right, im¬ 
proved out into the water in front of his land. The court, speaking 
by Judge Morris, held that the plaintiff was not entitled to recover, 
saying: "While the submerged land remains a part of the bed of the 
river it is not private property in the sense of the Fifth Amendment 
to the Federal Constitution. As was declared in Gilman v. Phila- 


108 


delphia, 3 Wall., 725, the navigable waters 'are the public property of 
the nation, and subject to all the requisite legislation by Congress.’ 
In the hands of the State or of the State’s grantee the bed of a navi¬ 
gable river remains subject to an easement of navigation, which the 
general government can lawfully enforce, improve and protect. It 
is by no means true that any dealing with a navigable stream which 
impairs the value of the rights of riparian owners gives them a claim 
for compensation. The contrary doctrine, that, in order to develop 
the greatest public utility of a waterway, private convenience must 
often suffer without compensation, has been sanctioned by repeated 
decisions of the Supreme Court. The following are cases all involv¬ 
ing that proposition: The Blackbird Creek Case, 2 Pet., 245; Gil¬ 
man v. Philadelphia, 3 Wall., 713; Pound v. Turck, 95 U. S., 459; 
Wisconsin v. Duluth, 96 U. S., 379; South Carolina v. Georgia, 93 
U. S., 4. If it were made apparent to Congress that any extension 
of the plaintiff’s present shore line into the river tended to impair the 
navigability of the stream or its use as a highway of commerce, Con¬ 
gress could authorize the agents of the United States to establish the 
present shore as the line beyond which no structures of any kind could be 
extended, and the plaintiff would have no claim for compensation. 
If the plaintiff could thus lawfully be prevented from appropriating to 
his private use any part of the submerged land lying in front of his 
shore line, and the whole of it be kept subservient to the easement of 
navigation, how can it be successfully claimed that he must be paid 
for the small portion covered by the light-house 200 feet from the 
shore, which has been taken for a use as strictly necessary to safe 
navigation as the improved channel itself? The Court of Appeals 
of Maryland, whenever called upon to declare the nature of the title 
of the State and its grantees in the land at the bottom of navigable 
streams, has uniformly held that the soil below high-water mark was 
as much a part of the jus publicum as the stream itself:” 39 Fed. 
Rep., 77. 

The plaintiff, Scranton, has assigned various grounds of error. 
These grounds are substantially those embodied in his requests for 
instructions in the trial court, and which were insisted upon in the 
Supreme Court of the State. 

Mr. John C. Donnelly and Mr. Harlow P. Davock for plaintiff in 
error. 

Mr. Robert Howard for defendant in error. Mr. Solicitor-General 
was on his brief. 


109 


Mr. Justice Harlan delivered the opinion of the court. After stat¬ 
ing the facts as above reported, he proceeded: 

OPINION OF THE COURT. 

1. The Government insists that ejectment is not the proper remedy 
for a riparian owner to secure the removal of a structure that inter¬ 
feres with access by him from his fast land to navigable water. A 
sufficient answer to this objection is that the State court recognized 
the present action as a proper one under the laws of Michigan for the 
relief sought by the plaintiff. We have therefore to consider only the 
controlling questions of a Federal nature presented by the record and 
decided by the State court. 

2. The Supreme Court of the State correctly held that the trial 
court erred in directing a verdict for the defendant upon the ground 
that a judgment against him would in legal effect be a judgment 
against the United States. It is true the defendant Wheeler insisted 
that the action of which the plaintiff complained was taken by him 
under the authority of the United States. But this fact was not suf¬ 
ficient to defeat the suit. If the plaintiff was entitled to access from 
his land to navigable water, and if the defendant stood in the way of 
his enjoying that right, then the court was under a duty to inquire 
whether the defendant had or could have any authority in law to do 
what he had done; and the suit was not to be deemed one against the 
United States because in the consideration of that question it would 
become necessary to ascertain whether the defendant could constitu¬ 
tionally acquire from the United States authority to obstruct the 
plaintiff’s access to navigable water in front of his land without mak¬ 
ing or securing compensation to him. The issue, in point of law, 
was between the individual plaintiff and the individual defendant, 
and the United States not being a party of record a judgment against 
Wheeler will not prevent it from instituting a suit for the direct de¬ 
termination of its rights as against the plaintiff. This subject has 
been examined by the court in numerous cases, the most recent one 
being Tindal v. Wesley, 167 U. S., 204, 222, 223. In that case— 
which was a suit to recover real property in South Carolina held by 
the defendants, as they insisted, in their capacities as officers of the 
State and only for the State—it was said that "the Eleventh Amend¬ 
ment gives no immunity to officers or agents of a State in withhold¬ 
ing the property of a citizen without authority of law. And when 
such officers or agents assert that they are in rightful possession, they 
must make good that assertion when it is made to appear in a suit 


110 


against them as individuals that the legal title and right of possession 
is in the plaintiff.” Again: '’It is said that the judgment in this 
case may conclude the State. Not so. It is a judgment to the effect 
only that as between the plaintiff and the defendants, the former is 
entitled to possession of the property in question, the latter having 
shown no valid authority to withhold possession from the plaintiff; 
that the assertion bv the defendants of a right to remain in possession 
is without legal foundation. The State not being a party to the suit, 
the judgment will not conclude it. Not having submitted its rights 
to the determination of the court in this case, it will be open to the 
State to bring any action that may be appropriate to establish and 
protect whatever claim it has to the premises in dispute. Its claim, 
if it means to assert one, will thus be brought to the test of the law 
as administered by tribunals ordained to determine controverted rights 
of property-; and the record in this case will not be evidence against 
it for any purpose touching the merits of its claim.” 

These principles are applicable to the present case, and show that 
it is not within the rule forbidding a suit against the United States 
except with its consent. 

3. The vital question therefore is the one heretofore mentioned, 
namely, whether the prohibition in the Constitution of the United 
States of the taking of private property for public use without just 
compensation has any application to the case of an owner of land bor¬ 
dering on a public navigable river whose access from his land to navi¬ 
gability is permanently lost by reason of the construction of a pier 
resting on submerged lands away from but in front of his upland, and 
which pier was erected by the United States not with any intent to 
impair the rights of riparian owners, but for the purpose only of im¬ 
proving the navigation of such river. 

Undoubtedly compensation must be made or secured to the owner 
when that which is done is to be regarded as a taking of private prop¬ 
erty for public use within the meaning of the Fifth Amendment of 
the Constitution; and of course in its exercise of the power to regu¬ 
late commerce, Congress may not override the provision that just 
compensation must be made when private property is taken for public 
use. What is private property within the meaning of that amend¬ 
ment, or what is a taking of private property for public use, is not 
always easy to determine. No decision of this court has announced 
a rule that will embrace every case. But what has been said in some 
cases involving the general question will assist us in determining 


Ill 


whether the present plaintiff has been denied the protection secured 
by the constitutional provision in question. 

In Pumpelly v. Green Bay Company, 13 Wall., 166, 181, the court 
a provision of the constitution of Wisconsin declaring that "the prop¬ 
erty of no person shall be taken for public use without just compen¬ 
sation therefor;” observing that it was a provision almost identical in 
language with the one relating to the same subject in the Federal 
Constitution. In that case it appeared that a public improvement in 
a navigable water was made under local statutory authority, whereby 
the plaintiff’s land was permanently overflowed and its use for every 
purpose destroyed. Referring to some adjudged cases which went, as 
the court observed, beyond sound principle, it was said that, "it 
remains true that where real estate is actually invaded by superinduced 
additions of water, earth, sand or other material, or by having any 
artificial structure placed on it, so as to effectually destroy or impair 
its usefulness, it is a taking, within the meaning of the Constitution, 
and that this proposition is not in conflict with the weight of judi¬ 
cial authority in this country, and certainly not with sound principle.” 

That case was relied upon in Transportation Co. v. Chicago, 99 
U. S., 635, 642, as establishing the invalidity of certain municipal 
acts looking to the improvement of a public highway. But this court 
said that "acts done in the proper exercise of governmental powers, 
and not directly encroaching upon private property, though their con¬ 
sequences may impair its use, are universally held not to be a taking 
within the meaning of the constitutional provision. They do not 
entitle the owner of such property to compensation from the State or 
its agents, or give him any right of action. This is supported by an 
immense weight of authority.” It was observed in the same case that 
the extremest qualification of the doctrine was that found in Pum- 
pelly’s case, and that case was referred to as holding nothing more 
than that "the permanent flooding of private property may be regarded 
as a 'taking,’ ” because there would be in such case "a physical in¬ 
vasion of the real estate of the owner, and a practical ouster of his 
possession. ” 

In Monongahela Navigation Co. v. United States, 148 U. S.,312, 
341, 343, there was an actual taking of certain locks and dams which 
had been constructed and maintained, under competent authority, by 
a navigation company, and the question was whether the franchise to 
take tolls for the use of the locks was to be deemed a part of the 
property taken for which compensation must be made. This court 
held that it was, remarking: "The franchise is a vested right. The 


112 


State has power to grant' it. It may retake it, as it may take other 
private property, for public uses, upon the payment of just compensa¬ 
tion. A like, though a superior, power exists in the National Gov¬ 
ernment. It may take it for public purposes, and take it even against 
the will of the State; but it can no more take the franchise which the 
State has given than it can any private property belonging to an 
individual.’’ Again, in the same case: "It is also suggested that the 
Government does not take this franchise; that it does not need any 
authority from the State for the exaction of tolls, if it desires to exact 
them; that it only appropriates the tangible property, and then either 
makes the use of it free to all, or exacts such tolls as it sees fit, or 
transfers the property to a new corporation of its own creation, with 
such a franchise to take tolls as it chooses to give. But this franchise 
goes with the property; and the Navigation Company, which owned 
it, is deprived of it. The Government takes it away from the com¬ 
pany, whatever use it may make of it; and the question of just com¬ 
pensation is not determined by the value to the Government which 
takes, but the value to the individual from whom the property is taken; 
and when by the taking of the tangible property the owner is actually 
deprived of the franchise to collect tolls, just compensation requires 
payment, not merely of the value of the tangible property itself, but 
also of that of the franchise of which he is deprived." 

But the case most analogous to the present one is that of Gibson v. 
United States, 166 U. S., 269, 271, 275, 276. That was an action 
in the Court of Claims to recover damages resulting from the con¬ 
struction of a dike by the United States in the Ohio River near the 
plaintiff’s farm on Neville Island, a short distance below Pittsburg. 

From the finding of facts in that case it appears that at the time the 
dike was constructed Mrs. Gibson’s farm was in a high state of cul¬ 
tivation, with a frontage of 1000 feet on the main channel of the 
Ohio River, and had a landing that was used in shipping products 
from and in bringing supplies to it, and that there was no other landing 
on the farm which the owner could use in shipping products and in 
receiving supplies; that the dike was constructed under the authority 
of an act of Congress appropriating money for improving the Ohio 
River; that the owner was unable to use the landing for the shipment 
of products from and supplies to the farm for the greater part of the 
gardening season on account of the dike obstructing the passage of 
boats, and could only use the landing at a high stage of water; that 
after the dike was made she could not, during the ordinary stage of 
water, ship products from or receive supplies for her farm, without 


113 


going over the farms of her neighbors to reach another landing; and 
that in consequence of the construction and maintenance of the dike 
the plaintiff’s farm had been reduced in value from $600 to $150 or 
$200 per acre. It was further found that the plaintiff’s access to the 
navigable part of the river was not entirely, cut off; that at a 9-foot 
stage of water, which frequently occurred during November, Decem¬ 
ber, March, April and May, she could get into her dock in any man¬ 
ner, while from a 3-foot stage of water she could communicate with 
the navigable channel through a chute, and at any time haul out to 
the channel by wagon; that no water was thrown back on the land by 
the building of the dike; and that the dike itself did not come into 
physical contact with the land and was constructed in the exercise of 
a claimed right to improve the navigation of the river. 

This court held that the plaintiff had no cause of action against the 
United States. It said: "All navigable waters are under the control 
of the United States for the purpose of regulating and improving navi¬ 
gation, and although the title to the shore and submerged soil is in 
the various States and individual owners under them, it is always 
subject to the servitude in respect of navigation created in favor of the 
Federal Government by the Constitution’’—citing South Carolina v. 
Georgia, 93 U. S., 4; Shively v. Bowlby, 152 U. S., 1; Eldridge v. 
Trezevant, 160 U. S., 452. Again, in the same case: "The Fifth 
Amendment to the Constitution of the United States provides that 
private property shall not 'be taken for public use without just com¬ 
pensation.’ Here, however, the damage of which Mrs. Gibson com¬ 
plained was not the result of the taking of any part of her property, 
whether upland or submerged, or a direct invasion thereof, but the 
incidental consequence of the lawful and proper exercise of a govern¬ 
mental power.’’ "Moreover,’’ the court said, "riparian ownership 
is subject to the obligation to suffer the consequences of the improve¬ 
ment of navigation in the exercise of the dominant right of the Gov¬ 
ernment in that regard. The legislative authority for these works 
consisted simply in an appropriation for their construction, but this 
was an assertion of a right belonging to the Government, to which 
riparian property was subject, and not of a right to appropriate private 
property, not burdened with such servitude, to public purposes." 

In the light of these adjudications, can it be held that Scranton, the 
plaintiff, is entitled, by reason of the construction of the pie? in 
question, to compensation for the destruction of his right, as riparian 
owner, of access from his land to the navigable part of the river im¬ 
mediately in front of it? 


114 


It is said that he is so entitled in virtue of the decision in Yates v. 
Milwaukee, 10 Wall., 497, 504, 505. The report of that case shows 
that Yates owned a wharf on a navigable river within the limits of 
the city of Milwaukee and that the city by an ordinance declared the 
wharf to be a nuisance and ordered it to be abated. There was no 
proof whatever in the record that the wharf was in fact an obstruction 
to navigation or a nuisance except the declaration to that effect in the 
city ordinance; and Yates brought suit to enjoin interference with it 
by the city. This court held that the mere declaration by the city 
that Yates’ wharf was a nuisance did not make it one, saying: "It is 
a doctrine not to be tolerated in this country that, a municipal corpo¬ 
ration, without any general laws either of the city or of the State, 
within which a given structure can be shown to be a nuisance, can, 
by its mere declaration that it is one, subject it to removal by any per¬ 
son supposed to be aggrieved or even by the city itself.’’ This, as 
this court said in Shively v. Bowlby, 152 U. S., 1, 40, was quite 
sufficient to dispose of the case in Yates’ favor, and indicated the 
point adjudged. A proper disposition of the case required nothing 
more to be said. But the opinion of the court went further, and 
after observing, upon the authority of Dutton v. Strong. 1 Black, 23, 
and Railroad Co. v. Schurmeir, 7 Wall., 272, that a riparian owner 
is entitled to access to the navigable part of the river from the front 
of his lot, subject to such general rules and regulations as the legisla¬ 
ture might prescribe for the protection of the rights of the public, said: 
"This riparian right is property, and is valuable, and though it must be 
enjoyed in due subjection to the rights of the public, it can not be arbi¬ 
trarily or capriciously destroyed or impaired. It is a right of which, 
when once vested, the owner can only be deprived in accordance with 
established law, and, if necessary that it be taken for the public good, 
upon due compensation.” 

The decision in Yates v. Milwaukee can not be regarded as an 
adjudication upon the particular point involved in the present case. 
That, as we have seen, was a case in which the riparian owner had 
in conformity with law erected a wharf in front of his upland in 
order to have access to navigable water. The city of Milwaukee at¬ 
tempted arbitrarily and capriciously to destroy or remove the wharf 
that had lawfully come into existence and was not shown, in any 
appropriate mode, to have been an obstruction to navigation. It was 
a case in which a municipal corporation intended the actual destruc¬ 
tion of tangible property belonging to a riparian owner and lawfully 
used by him in reaching navigable water, and not, like this, a case of 


115 


the exercise in a proper manner of an admitted governmental power 
resulting indirectly or incidentally in the loss of the citizen’s right of 
access to navigation—a right never exercised by him in the construc¬ 
tion of a wharf before the improvement in question was made by the 
Government. 

While the present case differs in its facts from any case heretofore 
decided by this court, it is embraced by principles of constitutional 
law that have become firmly established. 

The Constitution invests Congress with the power to regulate com¬ 
merce with foreign nations and among the several States. This power 
includes the power to prescribe "the rule by which commerce is to 
be governed;’’ * * * "is complete in itself, may be exercised to 

its utmost extent, and acknowledges no limitations other than are 
prescribed in the Constitution;’’ and "comprehends navigation within 
the limits of every State in the Union, so far as that navigation may 
be, in any manner, connected with 'commerce with foreign nations, 
or among the several States, or with the Indian tribes:’ ’’ Gibbons 
v. Ogden, 9 Wheat., 1, 196, 197. 

In Gilman v. Philadelphia, 3 Wall., 713, 724, the court said: 
"Commerce includes navigation. The power to regulate commerce 
comprehends the control for that purpose, and to the extent necessary, 
of all the navigable waters of the United States which are accessible 
from a State other than those in which they lie. For this purpose 
they are the public property of the nation, and subject to all the requi¬ 
site legislation by Congress.’’ 

In South Carolina v. Georgia, 93 U. S.,4, 11, 12, the court said 
that Congress "may build light-houses in the bed of the stream. It 
may construct jetties. It may require all navigators to pass along a 
prescribed channel, and may close any other channel to their passage. ’’ 
In Mobile County v. Kimball, 102 U. S., 691, 696, the court, ob¬ 
serving that the power of Congress to regulate commerce was without 
limitation, said: "It authorizes Congress to prescribe the conditions 
upon which commerce in all its forms shall be conducted between our 
citizens and the citizens or subjects of other countries and between 
the citizens of the several States, and to adopt measures to promote 
its growth and insure its safety. And as commerce embraces navi¬ 
gation, the improvement of harbors and bays along our coast, and of 
navigable rivers within the States connecting with them, falls within 
the power,’’ 

In Stockton v. Baltimore & N. Y. Railroad, 32 Fed. Rep., 9, 20, Mr. 
Justice Bradley, holding the Circuit Court, said: “Such being the 


116 


character of the State’s ownership of the land under water—an ownership 
held, not for the purpose of emolument, but for the public use of naviga¬ 
tion and commerce—the question arises whether it is a kind of property 
susceptible of pecuniary compensation, within the meaning of the Con¬ 
stitution. The Fifth Amendment provides only that private property 
shall not be taken without compensation, making no reference to public 
property. But, if the phrase may have an application broad enough to 
include all property and ownership, the question would still arise whether 
the appropriation of a few square feet of the river bottom to the founda¬ 
tion of a bridge, which is to be used for the tiansportation of an extensive 
commerce in aid and relief of that afforded by the waterway, is at all a 
diversion of the property from its original public use. It is not so con¬ 
sidered when sea walls, piers, wing-dams and other structures are erected 
for the purpose of aiding commerce by improving and preserving the 
navigation. Why should it be deemed such when (without injury to 
the navigation) erections are made for the purpose of aiding and enlarging 
commerce beyond the capacity of the navigable stream itself, and of all 
the navigable waters of the country? It is commerce, and not naviga¬ 
tion, which is the great object of constitutional care. The power to 
regulate commerce is the basis of the power to regulate navigation and 
navigable waters and streams, and these are so completely subject to the 
control of Congress, as subsidiary to commerce, that it has become usual 
to call the entire navigable waters of the country the navigable waters of 
the United States. It matters little whether the United States had or has 
not the theoretical ownership and dominion in the waters, or the land 
under them; it has, what is more, the regulation and control of them for 
the purposes of commerce. So wide and extensive is the operation of 
this power that no State can place any obstruction in or upon any navi¬ 
gable waters against the will of Congress, and Congress may summarily 
remove such obstructions at its pleasure. And all this power is derived 
from the power ‘to regulate commerce.’ Is this power stayed when it 
comes to the question of erecting a bridge for the purposes of commerce 
across a navigable stream? We think not. We think that the power to 
regulate commerce between the States extends, not only to the control of 
the navigable waters of the country, and the lands under them, for the 
purposes of navigation, but for the purpose of erecting piers, bridges and 
all other instrumentalities of commerce which, in the judgment of Con¬ 
gress, may be necessary or expedient.” 

As much was said in argument about the decisions in New York it 
may be well here to refer to some of the rulings of the highest court of 
that State. In Rumsey et al. v. New York and New England Railroad 


117 


Co., 133 N. Y., 79, 85, 89, the Court of Appeals of New York, referring 
to the prior case of Gould v. Hudson River Railroad Co., 6 N. Y., 522, 
said: It was there held that the owner of lands on the Hudson River 

has no private rights or property in the waters of the shore between high 
and low water mark, and, therefore, is not entitled to compensation from 
a railroad company which, in pursuance of a grant from the legislature, 
constructs a railroad along the shore, between high and low water mark, 
so as to cut off all communications between the land and the river other¬ 
wise than across the railroad. It is believed that this proposition is not 
supported by any other judicial decision in this State, and if we were 
dealing with the question now as an original one, it would not be diffi¬ 
cult to show that the judgment in that case was a departure from prec¬ 
edent and contrary to reason and justice.” Again, in the same case, “It 
must now, we think, be regarded as the law in this State that an owner 
of land on a public river is entitled to such damages as he may have sus¬ 
tained against a railroad company that constructs its road across his water 
front and deprives him of access to the navigable part of the stream, 
unless the owner has granted the right, or it has. been obtained by the 
power of eminent domain. This principle can not, of course, be extended 
so as to interfere with the right of the State to improve the navigation of 
the river, or with the power of Congress to regulate commerce under the 
provisions of the Federal Constitution.” 

But in a later case in New York relating to this subject—Sage v. The 
Mayor, 154 N. Y., 61, 69—the Court of Appeals, after observing that 
the court in Rumsey et al. v. New York and New England Railroad 
Co. had been careful to say that the principle announced by it was not to 
be extended so as to interfere with the right of the State to improve the 
navigation of the river, or with the powers of Congress to regulate com¬ 
merce under the provisions of the Federal Constitution, said: “While 
we think it is a logical deduction from the decisions in this State that, as 
against the general public, through their official representatives, riparian 
owners have no right to prevent important public improvements upon 
tide water for-the benefit of commerce, the principle upon which the rule 
rests, although sometimes foreshadowed, has not been clearly set forth. 
Although, as against individuals or the unorganized public, riparian 
owners have special rights to the tideway that are recognized and pro¬ 
tected by law, as against the general public, as organized and represented 
by government, they have no rights that do not yield to commercial 
necessities, except the right of pre-emption, when conferred by statute, 
and the right to wharfage, when protected by a grant and covenant on 
the part of the State, as in the Langdon (93 N. Y., 129) and Williams 


118 


(105 N. Y., 419) cases. I think that the rule rests upon the principle of 
implied reservation, and that in every grant of lands bounded by navigable 
waters where the tide ebbs and flows, made-by the crown or the State as 
trustee for the public, there is reserved by implication the right to so im¬ 
prove the water front as to aid navigation for the benefit of the general 
public, without compensation to the riparian owner. 1 he implication 
springs from the title to the tideway, the nature of the subject of the 
grant and its relation to navigable tide water, which has been aptly called 
the highway of the world. The common law recognizes navigation as 
an interest of paramount importance to the public.” 

All the cases concur in holding that the power of Congress to reg¬ 
ulate commerce, and therefore navigation, is paramount, and is un¬ 
restricted except by the limitations under its authority by the Con¬ 
stitution. Of course, every part of the Constitution is as binding 
upon Congress as upon the people. The guarantees prescribed by it 
for the security of private property must be respected by all. But 
whether navigation upon waters over which Congress may exert its 
authority requires improvement at all, or improvement in a particular 
way, are matters wholly within its discretion; and the judiciary is 
without power to control or defeat the will of Congress, so long as 
that branch of the Government does not transcend the limits estab¬ 
lished by the supreme law of the land. Is the broad power with 
which Congress is invested burdened with the condition that a riparian 
owner whose land borders upon a navigable water of the United States 
shall be compensated for his right of access to navigability whenever 
such right ceases to be of value solely in consequence of the improve¬ 
ment of navigation by means of piers resting upon submerged lands 
away from the shore line? We think not. The question before us 
does not depend upon the inquiry whether the title to the submerged 
lands on which the New South Pier rests is in the State or in the 
riparian owner. It is the settled rule in Michigan that "the title of 
the riparian owner extends to the middle line of the lake or stream of 
the inland waters:" Webber v. The Pere Marquette Boom Co., 62 
Mich., 626, and authorities there cited. But it is equally well set¬ 
tled in that State that the rights of the riparian owner are subject to 
the public easement or servitude of navigation: Lorman v. Benson, 8 
Mich., 18, 32; Ryan v. Brown, 18 Mich., 196, 207. So that whether 
the title to the submerged lands of navigable waters is in the State or 
in the riparian owners, it was acquired subject to the rights which 
the public have in the navigation of such waters. The primary use 
of the waters and the lands under them is for purposes of navigation. 


119 


and the erection of piers in them to improve navigation for the public 
as entirely consistent with such use, and infringes no right of the 
riparian owner. Whatever the nature of the interest of a riparian 
owner in the submerged lands in front of his upland bordering on a 
public navigable water, his title is not as full and complete as his 
title to fast land which has no direct connection with the navigation 
of such water. It is a qualified title, a bare technical title, not at 
his absolute disposal, as is his upland, but to be held at all times sub¬ 
ordinate to such use of the submerged lands and of the waters flowing 
over them as may be consistent with or demanded by the public right 
of navigation. In Lorman v. Benson, above cited, the Supreme 
Court of Michigan, speaking by Justice Campbell, declared the right 
of navigation to be one to which all others were subservient. The 
learned counsel for the plaintiff frankly states that compensation can 
not be demanded for the appropriation of the submerged lands in ques¬ 
tion and that the United States under the power to regulate com¬ 
merce has an unquestioned right to occupy them for a lawful purpose 
and in a lawful manner. This must be so—certainly in every case 
where the use of the submerged lands is necessary or appropriate in 
improving navigation. But the contention is that compensation must 
be made for the loss of the plaintiff’s access from his upland to navi¬ 
gability incidentally resulting from the occupancy of the submerged 
lands, even if the construction and maintenance of a pier resting upon 
them be necessary or valuable in the proper improvement of naviga¬ 
tion. We can not assent to this view. If the riparian owner can not 
enjoy access to navigability because of the improvement of navigation 
by the construction away from the shore line of works in a public 
navigable river or water, and if such right of access ceases alone for 
that reason to be of value, there is not, within the meaning of the 
Constitution, a taking of private property for public use, but only a 
consequential injury to a right which must be enjoyed, as was said in 
the Yates case, "in due subjection to the rights of the public”—an 
injury resulting incidentally from the exercise of a governmental power 
for the benefit of the general public, and from which no duty arises 
to make or secure compensation to the riparian owner. The riparian 
owner acquired the right of access to navigability subject to the con¬ 
tingency that such right might become valueless in consequence of 
the erection under competent authority of structures on the submerged 
lands in front of his property for the purpose of improving navigation. 
When erecting the pier in question, the Government had no object 
in view except, in the interest of the public, to improve navigation. 


120 


It was not designed arbitrarily or capriciously to destroy rights belong¬ 
ing to any riparian owner. What was done was manifestly necessary 
to meet the demands of international and interstate commerce. In 
our opinion, it was not intended that the paramount authority of 
Congress to improve the navigation of the public navigable waters of 
the United States should be crippled by compelling the Government 
to make compensation for the injury to a riparian owner's right of 
access to navigability that might incidentally result from an improve¬ 
ment ordered by Congress. The subject with which Congress dealt 
was navigation. That which was sought to be accomplished was 
simply to improve navigation on the waters in question so as to meet 
the wants of the vast commerce passing and to pass over them. Con¬ 
sequently the agents designated to perform the work ordered or author¬ 
ized bv Congress had the right to proceed in all proper ways without 
taking into account the injury that might possibly or indirectly result 
from such work to the right of access by riparian owners to naviga¬ 
bility. 

It follows from what has been said that the pier in question was the 
property of the United States, and that when the defendant refused to 
plaintiff the privilege of using it as a wharf or landing place he violated 
no right secured to the latter by the Constitution. 

We are of opinion that the court below correctly held that the 
plaintiff had no such right of property in the submerged lands on which 
the pier in question rests as entitled him, under the Constitution, to be 
compensated for any loss of access from his upland to navigability re¬ 
sulting from the erection and maintenance of such pier by the United 
States in order to improve and which manifestly did improve the naviga¬ 
tion of a public navigable water. 

The judgment of the Supreme Court of Michigan is therefore— 

Affirmed. 

Mr. Justice Brewer concurred in the result. 

Mr. Justice Shiras, with whom concurred Mr. Justice Gray and Mr. 
Justice Peckham, dissenting. 

Gilmore G. Scranton, the plaintiff in error, derived his title to a tract 
of land, known as Private Land Claim No. 3, and fronting on the St. 
Mary’s River, a stream naturally navigable, under a patent of the United 
States granted on October 6, 1874. 

It must be regarded as the settled law of this court that grants by Con¬ 
gress of portions of the public lands, bordering on or bounded by navi¬ 
gable waters, convey, of their own force, no title or right below high- 


121 


water mark, but leave the question of the use of the shores by the owners 
of uplands to the sovereign control of each State, subject only to the 
rights vested by the Constitution of the United States. 

In Shively v. Bowlby, 152 U. S., 1, there was a controversy between 
parties claiming under a patent of the United States for a donation land 
claim bounded by the Columbia River, and parties claiming under deeds 
from the State of Oregon for lands between the lines of low and ordinary 
high tide of the Columbia River. It was held by the Supreme Court of 
Oregon, 22 Oregon, 427, that the lands in question, lying between the 
uplands and the navigable channel of the Columbia River, belonged to 
the State of Oregon, and that its deed to such lands conveyed a valid 
title. 

The case was brought to this court, where the judgment of the Su¬ 
preme Court of Oregon was affirmed. The opinion of this court con¬ 
tains an elaborate review of the English authorities expounding the 
common law, of decisions of the several. States, and of the previous de¬ 
cisions of this court. The conclusion reached was that the title and 
rights of riparian or littoral proprietors in the soil below high-water mark 
are governed by the local laws of the several States, subject, of course, to 
the rights granted to the United States by the Constitution. The theory 
on which Congress has acted in this matter was thus stated by the court: 

“The Congress of the United States, in disposing of the public lands, 
has constantly acted upon the theory that these lands, whether in the in¬ 
terior, or on the coast, above high-water mark, may be taken up by 
actual occupants, in order to encourage the settlement of the country; 
but that the navigable waters and the soils under them, whether within 
or above the ebb and flow of the tide, shall be and remain public high¬ 
ways ; and, being chiefly valuable for the public purposes of commerce, 
navigation and fishery, and for the improvements necessary to secure and 
promote those purposes, shall not be granted away during the period of 
territorial government; but, unless in case of some international duty or 
public exigency shall be held by the United States in trust for the future 
States, and shall vest in the several States, when organized and admitted 
into the Union, with all the powers and prerogatives appertaining to the 
older States in regard to such waters and soils within their respective 
jurisdictions; in short, shall not be disposed of piecemeal to individuals 
as private property, but shall be held as a whole for the purpose of being 
ultimately administered and dealt with for the public benefit by the 
State, after it shall have become a completely organized community.” 

The reasoning and conclusions of this case were followed and applied 
in the subsequent cases of Mann v. Tacoma Land Co., 153 U. S., 273 ; 


122 


St. Anthony Falls Water Power Co. v. St. Paul Water Commissioners, 
168 U. S., 349; and Morris v. United States, 174 U. S., 196. 

It can not be said that any title to the submerged land became vested 
in the plaintiff in error, as against the State or its grantees by reason of 
the fact that it is the law of Michigan, in the case of lands abutting on 
navigable streams, titles to which are derived from the State, that such 
titles extend to and embrace submerged lands as far as the thread of the 
stream. It has never been held in Michigan that that doctrine applied to 
the case of titles derived from the United States. 

Shively v. Bowlby and Mann v. Tacoma Land Company, above 
cited, were both cases in which it was held that titles derived under 
grants by the United States to lands abutting on navigable waters did not 
avail against the State and subsequent grantees. 

It is not pretended that the State of Michigan ever made any grant to 
these submerged lands to the plaintiff in error; but, on the contrary, the 
State in 1881, transferred all its rights in the St. Mary’s Canal and the 
public works thereon, with all its appurtenances, to the United States: 
Howell’s Stat., sec. 5502. 

This would seem to dispose of the claim to the land occupied by 
the pier in the river in front of Private Land Claim No. 3. And, in¬ 
deed, the counsel for the plaintiff in error, in their briefs filed of 
record in this court, conceded that, under the facts of this case, com¬ 
pensation could not be demanded for the appropriation of the sub¬ 
merged lands, and restricted their argument to the question of the 
plaintiff’s right of access to the navigable stream bounding his prop¬ 
erty. But the opinion in this case, while correctly stating that the 
question before us is as to the right of the plaintiff in error to be in¬ 
demnified for the total destruction of his access to the river, does not 
confine the discussion to that question. Not regarding the fact that 
the plaintiff in error has failed to show any title to the submerged 
land, and that no such claim is urged on his behalf in this court, it is 
said in the opinion that— 

"The question before us does not depend upon the inquiry whether 
the title to the submerged lands on which the New South Pier rests 
is in the State or in the riparian owner. It is the settled rule in 
Michigan that 'the title of the riparian owner extends to the middle 
line of the lake or stream of the inland waters:’ Webber v. Pere 
Marquette Boom Co., 62 Mich., 636, and authorities there cited. 
But it is equally well settled in that State that the rights of the ri¬ 
parian owner are subject to the public easement or servitude of navi- 


123 


gation: Lowman v. Benson, 8 Mich., 18; Rvan v. Brown, 18 Mich., 
195. 

"So that whether the title to the submerged lands of navigable 
waters is in the State or in the riparian owners, such title was taken 
subject to the rights which the public have in the navigation of the 
waters in question. The primary use of the waters and the lauds 
under them is for purposes of navigation, and the erection of piers in 
them to improve navigation for the public is strictly consistent with 
such use, and infringes no right of the riparian owner. Whatever 
the interest of a riparian owner in the submerged lands in front of his 
upland, his title is not as full and complete as his title acquired to 
fast land which has no direct connection with the navigation of the 
river or water on which it borders. It is not a title at his absolute 
disposal, but is to be held at all times subordinate to such use of the 
submerged lands and of the waters flowing over them as is consistent 
with or demanded by the public right of navigation. The learned 
counsel for the plaintiff frankly states that compensation can not be 
demanded for the appropriation of the submerged lands in question, 
and that the United States, under the power to regulate commerce, 
has an unquestioned right to occupy them fora lawful purpose and in 
a lawful manner. This must be so—certainly in every case where the 
use of the submerged lands is necessary for the improvement of navi¬ 
gation.” 

It is, I think, impossible to read this language, particularly when 
read in connection with other passages in the opinion, without under¬ 
standing it to assert that where the riparian owner has a title to lands 
under navigable waters adjacent to his upland, such land may be taken 
into the exclusive possession of the Government by the erection of 
a public work without compensation; and that, even if the State 
court should hold that the riparian owner had a title to the submerged 
lands, and was entitled to be compensated for their appropriation for 
a public purpose connected with navigation, it would be the duty of 
this court to overrule such a decision. 

As, for the reasons already mentioned, no such question is now be¬ 
fore us, and therefore, those portions of the opinion of the majority 
can not justly be hereafter regarded as furnishing a rule of decision 
in such a case, yet I must be permitted to disavow such a proposition. 
When the case does arise, I incline to think it can be shown, upon 
principle and authority, that private property in submerged lands can 
not be taken and exclusively occupied for a public purpose without 
just compensation. At all events, I submit that it will be in time to 


124 


decide so important a question when it necessarily arises, and when 
the rights of the owner of the property have been asserted and defended 
in argument. 

The real question then in this case is whether an owner of land 
abutting on a public navigable river, but whose title does not extend 
beyond the high-water line, is entitled to compensation ''because of 
the permanent and total obstruction of his right of access to naviga¬ 
bility resulting from the maintenance of a pier constructed by the 
United States in the river opposite such land for the purpose of im¬ 
proving navigation.”' 

To answer such a question, the nature of the riparian right to access 
must be first determined. That he has such a right all must admit. 

But does his right constitute "private property” within the mean¬ 
ing of the Constitution, or is it in the nature of a license, or pre¬ 
scription, of which he can be deprived for the benefit of the public 
without being entitled to compensation? 

The term "property,” standing alone, includes everything that is 
the subject of ownership. It is a nomen generalissimum, extending to 
every species of valuable right and interest, including things real and 
personal, easements, franchises, and other incorporeal hereditaments: 

Boston R. R. Co. v. Salem, 2 Gray, 35; Shaw, C. J. 

"The term 'property’ as applied to lands, comprehends every species 
of title inchoate or complete. It is supposed to embrace those rights 
which lie in contract, those which are executory, as well as those * 

which are executed:” Soulard et al. v. United States, 4 Pet., 511; 
Marshall, C. J. 

Private property is that which is one’s own; something that belongs 
or inheres exclusively in an individual person. 

The right which a riparian owner has in a navigable stream, when 
traveling upon it, or using it for the purpose of navigation, must be 
distinguished from his right to reach navigable water from his land 
and to reach his land from the water. The former right is one which 
belongs to him as one of the public, and its protection is found in 
indictments at the suit of the public—sometimes, in special circum¬ 
stances, in proceedings in equity for the use of all concerned. Being 
a public right, compensation can not be had by private parties for any 
injury affecting it. The latter right is a private one, incident to the 
ownership of the abutting property, in the enjoyment of which such 
owner is entitled to protection of private remedies afforded by the law 
against wrongdoers, and for which, if it is taken from him for the 
benefit of the public he is entitled to compensation. 


125 


This distinction has always been recognized by the English courts. 

Rose v. Groves, 5 M. & G., 613, was a case where an innkeeper 
was held entitled to recover damages against a defendant for wrongfully 
preventing the access of guests to his home situated on the river 
Thames by placing timbers in the river opposite the inn, and wherein, 
meeting the contention that the plaintiff had no private right of action, 
but that his remedy was by proceedings for a public nuisance. Chief 
Justice Tindalsaid: "This is not an action for obstructing the river, 
but for obstructing the access to the plaintiff’s home on the river.” 

In Lyon v. Fishmongers’ Co., 1 App. Cas., 662, Lord Cai rns said: 

M As I understand the judgment in Rose v. Groves, it went not 
upon the ground of public nuisance, accompanied by particular dam¬ 
age to the plaintiff, but upon the principle that a private right to the 
plaintiff had been interfered with. The plaintiff, an innkeeper on 
the banks of a navigable river, complained that the access of the public 
to his house was obstructed by timber which the defendant had placed 
in the river; and it would be the height of absurdity to say that a pri¬ 
vate right was not interfered with, when a man who has been accus¬ 
tomed to enter his house from a highway finds his doorway made im¬ 
passable, so that he no longer has access to his house from the public 
highway. This would equally be a private injury to him, whether 
the right of the public to pass and repass along the highway were or 
were not at the same time interfered with. Chief Justice Tindal, in 
Rose v. Groves, put the case distinctly upon the footing of an in¬ 
fringement of a private right. He says: 'A private right is set up on 
the part of the plaintiff, and to that he complains that an injury has 
been done;’ and then, after stating the facts, adds: 'It appears to me, 
therefore, that the plaintiff is not complaining of a public injury.’ ” 

Elsewhere, in the same case. Lord Cairns said: 

"Independently of the authorities, it appears to me quite clear, 
that the right of a man to step from his own land into a highway is 
something quite different from the public right of using the highway. 

"Unquestionably the owner of a wharf on the river bank has, like 
every other subject of the realm, the right of navigating the river as 
one of the public. This, however, is not a right coming to him qua 
owner or occupier of any lands on the bank; nor is it a right which 
per se he enjoys in a manner .different from any other member of the 
public. 

"But when this right of navigation is connected with an exclusive 
access to and from a particular wharf, it assumes a very different char¬ 
acter. It ceases to be a right held in common with the rest of the 


126 


public, for other members of the public have no access to or from the 
river at the particular place, and it becomes a form of enjoyment of 
the land, the disturbance of which may be vindicated in damages by 
an action or restrained by an injunction. It is, as was decided by 
the House of Lords in the cases to which I have referred, a portion 
of the valuable enjoyment of the land, and any work which takes it 
away is held to be ’an injurious affecting of the land/ that is to say, 
the occasioning to the land of an injuria , or an infringement of right. 
The taking away of river frontage, interrupting the access between 
the wharf and the river, may be an injury to the public right of navi¬ 
gation, but it is not the less an injury to the owner of the wharf, 
which, in the absence of parliamentary authority, would be compen¬ 
sated by damages or altogether prevented:” 1 App. Cas., 671. 

This distinction between the right of immediate access from the 
abutter’s property to and from a highway, whether a street or a navi¬ 
gable stream, and an injury arising after he reaches it and which is 
common to him and the rest of the public, is recognized by the courts 
of the States, and the former right is held to be a valuable one, which 
can not be destroyed without compensation. 

Thus, in Haskell v. New Bedford, 108 Mass., 208, it was held that 
where a sewer constructed by the city of New Bedford discharged filth 
into the dock of the plaintiff, obstructing his use of it, it created a private 
nuisance to the plaintiff upon his own land for which he could maintain 
an action for the special damages thereby occasioned to him, without re¬ 
gard to the question whether it was also a nuisance tc the public, Mr. 
Justice Gray, now a justice of this court, saying : “The plaintiff’s title 
extended, by virtue of the statute of 1806, to the channel of the river; 
and the filling up of the dock impaired his use and enjoyment of it for 
the purpose for which it had been constructed and actually used; and the 
injury thus done to him differed, not only in degree but in kind, from 
the injury to the public by interference with navigation. Neither this 
special injury to him, nor that occasioned to his premises by making them 
offensive and unhealthy was merged in the common nuisance”—and 
citing, among other cases, Rose v. Groves, one of the English cases 
above mentioned. 

And in Brayton v. Fall River, 113 Mass., 218, it was held that while 
the owner of a wharf upon a tide-water cr.eek can not maintain an action 
for an illegal obstruction to the creek, that being a common damage to 
all who use it, yet for an obstruction adjoining the wharf which prevents 
vessels from lying in it in the accustomed manner, this being a particular 
damage, he can maintain an action. 


127 


In Deleplaine v. Chicago & N. W. Railway, 42 Wisconsin, 214, the 
Supreme Court of Wisconsin held that— 

While the riparian proprietor only takes to the water line, it by no 
means follows, nor are we willing to admit, that he can be deprived of 
his riparian rights without compensation. As proprietor of the adjoining 
land, and as connected with it, he has the right of exclusive access to and 
from the waters of the lake at that particular place; he has the right to 
build piers and wharves in front of his land out to navigable waters in aid 
of navigation, not interfering with the public use. These are private 
rights incident to the ownership of the shore, which he possesses distinct 
from the rest of the public. 

“It is evident from the nature of the case that these rights of user and 
of exclusion are connected with the land itself, grow out of its location, 
and can not be materially abridged or destroyed without inflicting an 
injury upon the owner which the law should redress. It seems unneces¬ 
sary to add the remark that these riparian rights are not common to the 
citizens at large, but exist as incidents to the right of the soil itself ad¬ 
jacent to the water. In other words, according to the uniform doctrine 
of the best authority, the foundation of riparian rights, ex vi termini , is 
the ownership of the bank or shore.” “These riparian rights are un¬ 
doubted elements in the value of property thus situated. If destroyed, 
can any one seriously claim that the plaintiffs have not suffered a special 
damage in respect to their property, different both in degree and kind 
from that sustained by the general public? It seems to us not.” 

In Brisbane v. St. Paul &c. Railroad, 23 Minnesota, 114, it was held 
by the Supreme Court of Minnesota that the State could not give a rail¬ 
road the right to occupy a riparian front without making compensation 
for the injury to riparian rights. The court, after citing cases in this 
court, said : 

“According to the doctrine of these decisions the plaintiff possessed the 
right to enjoy free communication between his abutting premises and 
the navigable channel of the river, to built and maintain, for his own and 
the public use, suitable landing places, wharves, etc. * * * The rights 
which thus belonged to him as riparian owner of the abutting premises 
were valuable property rights, of which he could not be divested, without 
authority, except by due process of law, and, if for public purposes, upon 
just compensation.” 

In The Indiana &c. Railway Co. v. Eberle, 110 Indiana, 445, the 
Supreme Court of Indiana said : 

“Whatever may be the rule of decision elsewhere, nothing is better 
settled in this State than that the owners of lots abutting on a street may 


128 


have a peculiar and distinct interest in the easement in the street in front of 
their lots. This interest includes the right to have the street kept open 
and free from any obstruction which prevents or materially interferes with 
the ordinary means of egress from and ingress to the lots. It is distin¬ 
guished from the interest of the general public, in that it becomes a right 
appendant and legally adhering to the contiguous grounds and the improve¬ 
ments thereon as the owner may have adapted them to the street. To the 
extent that the street is a necessary and convenient means of access to the 
lot, it is as much a valuable property right as the lot itself. It can not, 
therefore, be perverted from the uses to which it was originally dedicated, 
nor devoted to uses inconsistent with street purposes, without the abut¬ 
ting owner’s consent, until due compensation be first made according to 
law for any injury or damage which may directly result from such inter¬ 
ference.” 

This right of the owner of a lot abutting on a street to free access to 
and from the street, which right is analogous to the one we are here con¬ 
sidering, has been frequently considered by the State courts, and some of 
the conclusions reached are thus stated in Dillon’s Municipal Corpora¬ 
tions, Vol. 2, sec. 656 (4th ed.): 

“The full conception of the true nature of a public street in a city, as 
respects the rights of the public on the one hand, and the rights of the 
adjoining owner on the other, has been slowly evolved from experience. 
It has been only at a recent period that these two distinct rights have, 
separately and in their relations to each other, come to be understood and 
defined with precision. The injustice to the abutting owner arising from 
the exercise of unrestrained legislative power over streets in cities was such 
that the abutter necessarily sought legal redress, and the discussion thence' 
ensuing led to a more careful ascertainment of the nature of streets, and 
of the rights of the adjoining owner in respect thereof. It was seen that 
he had in common with the rest of the public a right of passage. But it 
‘was further seen that he had rights not shared by the public at large, spe¬ 
cial and peculiar to himself, and which arose out of the very relations of 
his lot to the street in front of it; and that these rights, whether the bare 
fee of the streets was in the lot owner or in the city, were rights of prop¬ 
erty, and as such ought t6 be and were as sacred from legislative invasion 
as his right to the lot itself. In cities the abutting owner’s property is 
essentially dependent upon sewer, gas and w'ater connections; for these 
such owner has to pay or contribute out of his own purse. He has also 
to pay or contribute towards the cost of sidewalks and pavements. These 
expenditures, as well as the relation of his lot to the street, give him a 
special interest in the street in front of him, distinct from that of the pub- 


129 


lie at large. He may make, as of right, all proper uses of the street sub¬ 
ject to the paramount right of the public for all street uses proper, and 
subject also to reasonable and proper municipal and police regulation. 
Such rights, being property rights, are like other property rights under the 
protection of the Constitution.” 

The courts of New York, which formerly took another view, now hold 
that right of access is a valuable property right and entitled to constitu¬ 
tional protection as such: Steers v. Brooklyn, 101 N. Y., 51; Langdon v. 
New York, 93 N. Y., 129. 

It is true that, in the later case of Sage v. The Mayor, 154 N. Y., 61, 
it was held that the riparian rights of the owner of lots abutting on the 
Harlem River, a tide-water stream, are subordinate to the rights of the 
city of New York, under its ancient charters supplemented by constitu¬ 
tional legislation and State grants, to fill in and make improvements, such 
as an exterior street, docks and bulkheads, from the high-water mark in 
front of his upland to and below low-water mark, essential to navigation 
and commerce, without compensation. But the opinion shows that the 
decision was put wholly upon the law of the State of New York, as de¬ 
clared in the authorities cited. Thus the language of Gerard in his work 
on Titles to Real Estate is adopted: 

“It has been established in this State—New York—by judicial decision 
that the legislature of the State has an inherent right to control and regu¬ 
late the navigable waters within the State. * * * The individual right 
of the riparian owner was considered as subject to the right of the State 
to abridge or destroy it at pleasure by a construction or filling in beyond 
his outer line, and that, too, without compensation made.” 

And again the court says: 

“In other States some of the authorities are in accord, while others are 
opposed to the rule adopted in this State. The want of harmony is prob¬ 
ably owing to the difference in the rule as to the ownership of the tide¬ 
way, which is held in some jurisdictions to belong to the State, and in 
others to the riparian proprietors. This also accounts for the want of 
harmony in the Federal courts, as they follow the courts of the State 
where the case arose, unless some question arises under an act of Congress.” 

This case, therefore, must be regarded as an adjudication that, in the 
State of New York, the nature and extent of riparian rights are to be de¬ 
termined by the law of the State, and that the Federal courts, in passing 
upon such rights, follow that law. 

In Barkus v. Detroit, 49 Michigan, 110, it was held by the Supreme 
Court of Michigan, per Cooley, J., that “the better and more sub¬ 
stantial doctrine is that the land under the water in front of a riparian 


130 


proprietor, though beyond the 'line of private ownership, can not be taken 
and appropriated to a public use by a railway company under its right of 
eminent domain without making compensation to the riparian proprietor. 

Leaving the decisions of the State courts, let us turn to those of this 
court, and I shall not consider it necessary to advert to the earlier de¬ 
cisions, because they are referred to and considered in the later ones. 

Railroad Company v. Schurmeir, 7 Wall., 272, was a case involving 
the right of the complainant, Schurmeir, to enjoin the St. Paul &c. R. 
R. Company from taking possession and building its railroad upon cer¬ 
tain ground in the city of St. Paul, Minnesota, bordering on the Mis¬ 
sissippi River, and lying between lots of the complainant and that river. 
The railroad company claimed to own the land in fee under a congres¬ 
sional land grant of May 22, 1857. The Supreme Court of Minnesota 
held that the complainant was entitled to a decree as prayed for; and this 
court, on appeal, affirmed the judgment of the Supreme Court of Min¬ 
nesota, holding that, under the case of Dutton v. Strong, 1 Black, 23, 
although riparian owners are limited to the stream, still they also have 
the same right to construct suitable landings and wharves, for the con¬ 
venience of commerce and navigation, as is accorded riparian properties 
bordering on navigable waters, affected by the ebb and flow of the tide; 
and speaking of the contention, on behalf of the railroad company, that 
the complainant had dedicated the premises to the public as a street, and 
had thus parted with his title to the same, this court said : 

“Suppose the construction of that provision, as. assumed by the re¬ 
spondents, is correct, it is no defense to the suit, because it is nevertheless 
true, that the municipal corporation took the title in trust, impliedly, if 
not expressly, designated by the acts of the party making the dedication. 
They could not, nor could the State, convey to the respondents any right 
to disregard the trust, or to appropriate the premises to any purpose which 
would render valueless the adjoining real estate of the complainant.” 

In Yates v. Milwaukee, 10 Wall., 497, on appeal from the Circuit 
Court of the District of Wisconsin, it was held that the owner of the 
land, bounded by a navigable river, has certain riparian rights, whether 
his title extend to the middle of the stream or not; that among these are 
free access to the navigable part of the stream, and the right to make a 
landing, wharf or pier, for his own use, or for the use of the public; that 
those rights are valuable, and are property, and can be taken for the 
public good only when due compensation is made. In the opinion, per 
Miller, J., it was said: 

“Whether the title of the owner of such a lot extends beyond the dry 
land or not, he is certainly entitled to the rights of a riparian proprietor 


131 


whose land is bounded by a navigable stream; and among those rights 
are access to the navigable part of the river from the front of his lot, the 
right to make a landing, wharf or pier for his own use or for the use of 
the public, subject to such general rules and regulations as the legislature 
may see proper to impose for the protection of the rights of the public, 
whatever those may be. * * * This riparian right is property, and is 
valuable, and though it must be enjoyed in due subjection to the rights 
of the public, it can not be arbitrarily or capriciously destroyed or impaired. 
It is a right which, when once vested, the owner can only be deprived in 
accordance with established law, and, if necessary that it be taken for the 
public good, upon due compensation.” 

Accordingly this court reversed the decree of the Circuit Court, and 
instructed it “to enter a decree enjoining the city of Milwaukee, defend¬ 
ant below, from interfering with plaintiff’s wharf, reserving, however, the 
right of the city to remove or change it so far as may be necessary in the 
actual improvement of the navigability of the river, and upon due com¬ 
pensation made.” 

The opinion in Yates v. Milwaukee, like that of the majority in the 
present case, may be liable to the criticism made upon it in Shively v. 
Bowlby, 152 U. S., 1, 36, as having gone too far in saying that the owner 
of land adjoining any navigable water, whether within or above the ebb 
and flow of the tide, has, independently of local law, a right of property in 
the soil below high-water mark, and the right to build out wharves so far, 
at least, as to reach water really navigable. But so corrected, it is a 
direct authority for the proposition we are now considering, namely, that 
riparian rights, when recognized as existing by the law of the State, are a 
valuable property, and the subject of compensation when taken for 
public use. 

In the case of Weber v. Harbor Commissioners, 18 Wall., 64, it was 
said : 

“It is unnecessary for the disposition of this case to question the doc¬ 
trine that a riparian proprietor, whose land is bounded by a navigable 
stream, has the right of access to the navigable part of the stream in front 
of his land, and to construct a wharf or pier projecting into the stream 
for his own use, or the use of others, subject to such general rules and 
regulations as the legislature may prescribe for the protection of the 
public, as was held in Yates v. Milwaukee. On the contrary, we recog¬ 
nize the correctness of the doctrine as stated and affirmed in that case.” 

In Potomac Steamboat Co. v. Upper Potomac Steamboat Co., 109 
U. S., 62, Mr. Justice Mathews, delivering the opinion of this court, 
quoted with approval the definition of a riparian owner and of his right 


132 

of access to a navigable river in front of his lot, given by Mr. Justice 
Miller in Yates v. Milwaukee. 

In Illinois Central Railroad v. Illinois, 146 U. S., 445, this court said: 
“The riparian proprietor is entitled, among other rights, as held in Yates 
v. Milwaukee, 10 Wall., 497, to access to the navigable part of the water 
on the front of which lies his land, and for that purpose to make a land¬ 
ing, wharf or pier for his own use or for the use of the public, subject 
to such general rules and regulations as the legislature may prescribe for 
the protection of the public. In the case cited the court held that this 
riparian right was property and valuable; and though it must be enjoyed 
in due subjection to the rights of the public, it could not be arbitrarily or 
capriciously impaired.” 

In Eldridge v. Trezevant, 160 U. S., 452, it was again held by this 
court, following Hardin v. Jordan, 140 U. S., 371, 384, and Shively v. 
Bowlby, 152 U. S., 1, 58, that the nature and legal incidents of land abut¬ 
ting on navigable streams were declared by the law of the State wherein 
the land was situated. A bill was filed in the Circuit Court of the United 
States for the Western District of Louisiana by Eldridge, a citizen of 
Mississippi, against the board of engineers of the State of Louisiana and 
one Trezevant, who had been employed by that board to construct a pub¬ 
lic levee through a plantation belonging to the complainant and situated 
in Carroll township, State of Louisiana, in pursuance of an act of the 
general assembly of the State. The Circuit Court dismissed the bill, and 
an appeal was taken to this court. It appeared, and indeed was conceded 
by the appellant, that under the law and constitution of the State, and un¬ 
der French law existing before the transfer of the territory to the United 
States, land for the construction of a public levee on the Mississippi River 
could be taken, without compensation, by reason of a servitude on such 
lands for such a purpose. But it was contended on behalf of the appel¬ 
lant that, because he was a citizen of another State, and because he de¬ 
rived his title through a patent of the United States, that whatever may 
have been the condition of the ancient grants, no such condition attached 
to his ownership, and that the lands, bordering on a navigable stream, 
were as much within the protection of the constitutional principle award¬ 
ing compensation as other property. 

After reviewing the provisions of the constitution and laws of the State 
and the decisions of the State court construing them, and citing Federal 
decisions, this court said: 

“These decisions not only dispose of the proposition that lands, situated 
within a State, but whose title is derived from the United States, are en¬ 
titled to be exempted from local regulations admitted to be applicable to 


133 


lands held by grant from the State, but also the other proposition that the 
provisions of the Fourteenth Amendment extend to and override public 
rights, existing in the form of servitude or easements, held by the courts 
of a State to be valid under the constitution and laws of such State. 

“The subject-matter of such rights and regulations falls within the 
control of the States, and the provisions of the Fourteenth Amendment 
of the Constitution of the United States are satisfied, if, in cases like the 
present one, the State law, with its benefits and obligations, is impartially 
administered: Walker v. Sauvinet, 92 U. S., 90; Davidson v. New Or¬ 
leans, 96, U. S., 97; Missouri v. Lewis, 101 U. S., 22; Hallinger v. 
Davis, 146 U. S., 314. The plaintiff in error is, indeed, not a citizen of 
Louisiana, but he concedes that, as respects his property in that State, he 
has received the same measure of right as that awarded to its citizens, and 
we are unable to see, in the light of the Federal Constitution, that he has 
been deprived of his property without due process of law, or been denied 
the equal protection of the laws.” 

The case of Gibson v. United States, 166 U. S., 269, is cited and relied 
on in the majority opinion. In that case the owner of a farm fronting on 
the Ohio River filed a petition in the Court of Claims complaining of the 
construction by the United States of a dike in the bed of the river, and 
which the plaintiff alleged to interfere with her landing. The principal 
finding of the Court of Claims was as follows: 

“Claimant’s access to the navigable portion of the stream was not en¬ 
tirely cut off; at a 9-foot stage of the water, which frequently occurs dur¬ 
ing November, December, March, April and May, she could get into her 
dock in any manner; that from a 3-foot stage she could communicate 
with the navigable channel through the chute; that at any time she could 
haul out to the channel by wagon.” 

The only injury suffered, therefore, by the plaintiff was the inconveni¬ 
ence of having to haul her produce by wagon over and across the dike in 
such portions of the year when the water was below a 3-foot stage, and 
when, at that part of the Ohio River, navigation was almost wholly sus¬ 
pended. At other times, and when the stage of the water permitted navi¬ 
gation, the plaintiff has the use of her dock. The Court of Claims dis¬ 
missed the petition, and its decree was affirmed by this court. There was 
no pretense that the dike in question touched the plaintiff’s land at any 
point. 

The Chief Justice, in the opinion, put the judgment chiefly on the de¬ 
cisions of the State court. He said: “ By the established law of Penn¬ 
sylvania, as observed by Mr. Justice Gray in Shively v. Bowlby, the 
owner of lands bounded by navigable water has the title in the soil be- 


134 


rween high and low water mark, subject to the public right of navigation 
and the authority of the legislature to make public improvements upon it, 
and to regulate his use of it.’ rr After citing several Pennsylvania cases, 
the Chief Justice concluded his opinion by saying: “In short, the dam¬ 
age resulting from the prosecution of the improvement of a navigable 
highway, for the public good, was not the result of a taking of the appel¬ 
lant’s property, and was merely incidental to the exercise of a servitude to- 
which her property had always been subject.” It rs obvious, therefore, 
that in this case the court applied the doctrine of Eldridge v. Trezevant, 
which was cited in the opinion, and that the servitude to which the 
plaintiff’s lands were said to be subject was a servitude existing under the 
State law, and not a servitude created by Federal law. 

In the States which originally formed this Union, or in those admitted 
since, it has never been held that the United States, through any of their 
departments, could impose servitudes upon the lands owned by the States 
or by their grantees. The cases are all the other way : New Orleans v. 
United States, 10 Pet,, 662, 736; Pollard v. Hagan, 3 How., 212; Bar¬ 
ney v. Keokuk, 94 U. S., 324; Van Brocklin v. Tennessee, 117 U. S., 
151, 168; Shively v. Bowlby, 152 U. S., L 
In the recent case of Morris v. United States, 174 U. S., 196, the 
question of the nature and extent of riparian rights on the Potomac River 
in front of the city of Washington was involved. The majority of the 
court held that, under the evidence, the title of the owners of lots in the 
city plans was bounded by Water street, and that, therefore, such owners 
possessed no riparian rights entitled to compensation by the United States 
in carrying out a scheme of improvement of the waters of the river. 

The opinion of the court proceeded on the assumption, as matter of 
law, that owners of land abutting on the river would be possessed of 
riparian rights, and entitled, therefore, to compensation, if such rights 
were impaired or destroyed by the improvements proposed by the Gov¬ 
ernment, but held, as a conclusion from the evidence, that, as matter of 
fact, the owners of lots under the city plans did not have titles extending 
to the river, but that their lots were bounded by Water street, the title 
to which was in the city, and therefore no compensation for exclusion 
from the river could be enforced. The case, therefore, may be properly 
regarded as an authority for the proposition that the owners of lots abut¬ 
ting on a navigable river are entitled to compensation if their riparian 
right of access is taken from them by improvements made bv the Gov¬ 
ernment to promote the navigability of the Potomac River. The long 
investigation by court and counsel was, indeed, labor in vain if, at last 


135 


riparian rights possessed by the low owners, should be decided not to be 
private property within the protection of the Constitution. 

If, then, by the law of the State in which the land is situated, the right 
of access to navigable streams is one of the incidents of abutting land, if 
such rights are held to be property and valuable as such, can the United 
States, under the incidental power arising out of their jurisdiction over 
interstate commerce, destroy such right of access without making com¬ 
pensation? I think that this question may well be answered in the words 
of Gould in his work on Waters (2d ed.), sec, 151: “When it is con¬ 
ceded that riparian rights are property, the question as to the right to 
take them away without compensation would appear to be at an end.” 

The argument against the right of compensation in such a case 
seems to be based upon an assumption that because the Government 
has the power to make improvements in navigable waters, it follows 
that it can do so without making compensation to the owners of pri¬ 
vate property destroyed by the improvements. But this assumption is, 
as I think, entirely without foundation, and, if permitted by the 
courts to be made practically applicable would amount to a disregard 
'of the express mandate of the Constitution that private property shall 
not be taken for public uses without just compensation. 

The power to establish post offices and to create courts within 
the States was conferred upon the Federal Government, and included 
in it was authority to obtain sites for such offices and for court houses, 
and to obtain them by such means as were known and appropriate. 
The right of eminent domain was one of those means well known 
when the Constitution was adopted, and employed to obtain land for 
public uses. Its existence, therefore, in the grantee of that power 
ought not to be questioned. The Constitution itself contains an im¬ 
plied recognition of it beyond what may justly be implied from the 
express grants. The Fifth Amendment contains a provision that pri¬ 
vate property shall not be taken for public use without just compensa¬ 
tion. What is that but an implied assertion, that, on making just 
compensation, it may be taken? Kohl v. United States, 91 U. S., 
3(57, 374. 

Accordingly, in that case, a proceeding instituted by the United 
States to appropriate a parcel of land in the city of Cincinnati as a 
site for a post office and other public uses, was upheld, but those pro¬ 
ceedings contemplated compensation, and Congress, in the act author¬ 
izing the proceedings, appropriated money for the purpose. 

Now if, in order to render valid an appropriation of private property 
for the use of the Government in the erection of post offices and court 



136 


houses compensation must be made, what is the difference in principle 
if the Government is appropriating private property for the purpose of 
improving the navigation of a navigable stream? This question has 
been already put and answered by this court in Monongahela Naviga¬ 
tion Company v. United States, 148 U. S., 312, where it was said: 

"It can not be doubted that Congress has the power in its discretion 
to compel the removal of this lock and dam as obstructions to the 
navigation of the river, or to condemn and take them for the purpose 
of promoting its navigability. In other words, it is within the com¬ 
petency of Congress to make such provision respecting the improve¬ 
ment of the Monongahela River as in its judgment the public interests 
demand. Its dominion is supreme. 

"But like other powers granted to Congress by the Constitution, 
the power to regulate commerce is subject to all the limitations im¬ 
posed by such instrument, and among them is that of the Fifth Amend¬ 
ment we have heretofore quoted. Congress has supreme control over 
the regulation of commerce, but if, in exercising that supreme con¬ 
trol, it deems it necessary to take private property, then it must pro¬ 
ceed subject to the limitations imposed by this Fifth Amendment,* 
and can take only on payment of just compensation.” 

"The power to regulate commerce is not given in any broader terms 
than that to establish post offices and post roads; but if Congress 
wishes to take private property upon which to build a post office, it 
must either agree upon the price with the owner or in condemnation 
pay just compensation therefor. * * * And that which is true in 

respect to a condemnation of property for a post office is equally true 
when condemnation is sought for the purpose of improving a natural 
highway. ” 

As already remarked, the power of the Government to control and 
regulate navigable streams and to carry into effect schemes for their 
improvement, is not directly given by the Constitution, but is only 
recognized by the courts as an incident to the power expressly given 
to regulate commerce between the States and with foreign nations. 

Now, if it be held that Congress has power to take or destroy pri¬ 
vate property, lying under or adjacent to navigable streams, without 
compensating their owners, because it is done in the exercise of the 
power to regulate commerce, then it must follow that the same un¬ 
limited power can be exercised with respect to private property not in 
nor bounded by water. The power of Congress to regulate commerce 
is not restricted to commerce carried on in lakes and rivers, but equally 
extends to commerce carried on by land. If Congress, yielding to a 


137 


loud and increasing popular demand that it should take possession and 
control of the railroads of the country, or should undertake the con¬ 
struction of new railroads as arteries of commerce, this novel notion, 
that the existence of the right to regulate commerce creates of itself 
and independently of the law of the State a Federal servitude on all 
property to be affected by the exercise of that right, would apply to all 
kinds of private property wherever situated. 

But it may be asked why, if the question as to riparian rights is one 
of State law, the decision of the Supreme Court of Michigan in the 
present case, denying the claim of the abutting owner for compensa¬ 
tion for the loss of his access to the river, is not conclusive? 

The answer to this question will be found in the opinion of that 
court. Instead of ascertaining and applying, or professing to apply, 
the law of the State in respect to riparian rights, the Supreme Court 
of Michigan treated the question as one under Federal law, and, fol¬ 
lowing what is understood to be the doctrine laid down by several 
Federal Circuit Court decisions as obligatory, held that it was com¬ 
petent for the Government of the United States, in the exercise of 
its power to regulate commerce between the States, to deprive abutting 
owners of their right to access to navigable streams, without com¬ 
pensating them for their loss. The cases so relied on were Stockton 
v. Baltimore & N. Y. R. R. Co., 32 Fed. Rep., 9; Hawkins Point 
Light-house Case, 39 Fed. Rep., 77; and Scranton v. Wheeler, 57 
Fed. Rep., 803. 

The first of these cases arose on a bill filed in the Circuit Court of the 
United States for the District of New Jersey by the Attorney-General 
of New Jersey, seeking to restrain the Baltimore and New York Rail¬ 
road Company, acting under Congressional authority, from occupying 
without compensation land belonging to the State of New Jersey, lying 
under tide waters, by the pier of a bridge. Mr. Justice Bradley, refus¬ 
ing the injunction, said : 

“The character of the State’s ownership of the land under water—an 
ownership held, not for the purpose of emolument, but for public use, 
especially the public use of navigation and commerce—the question 
arises whether it is a kind of property susceptible of pecuniary compensa¬ 
tion within the meaning of the Constitution. The Fifth Amendment 
provides only that private property shall not be taken without compen¬ 
sation, making no reference to public property. But if the phrase may 
have an application broad enough to include all property and ownership, 
the question would still arise whether the appropriation of a few square 
feet of the river bottom to the foundation of a bridge, which is to be 


138 


used for the transportation of an extensive commerce in aid and relief of 
that afforded by the waterway, is at all a diversion of the property from 
its original use.” 

Mr. Justice Bradley was himself a New Jersey lawyer, and availed 
himself, in that case, of the law of that State, which has always been to 
the effect that the land underlying the tide waters belonged to the State, 
and was held for a public use. His view was that as, under the law of 
New Jersey, the land beneath tide waters was held by the State for pub¬ 
lic uses, such land was not private property within the meaning of the 
Constitution, or that, at all events, its occupation, to a limited extent, 
by the pier of a bridge intended to promote commerce, was not a diver¬ 
sion of the property from its original use. 

It needs no argument to show that such a decision is not applicable to 
the presept case. Indeed, it is plain that if the case had been one involv¬ 
ing the right of an abutter to access to the tide water, the same being, 
under the laws of the State, private property, the decision of that learned 
justice would have been very different. He was the organ of this court 
in pronouncing the opinion in Barney v. Keokuk, 94 U. S., 324, where 
the question was whether the title of riparian proprietors on the banks of 
the Mississippi extended to ordinary high-water mark or to the shore 
between high and low water mark, and said : 

“In our view of the subject the correct principles were laid down in 
Martin v. Waddell, 16 Pet., 367; Pollard’s Lessee v. Hagan, 3 How., 
212; and Goodtitle v. Kibbe, 9 How., 471. These cases related to tide 
water, it is true; but they enunciate principles which are equally appli¬ 
cable to all navigable waters. And since this court, in the case of The 
Genessee Chief, 12 How., 443, has declared that the Great Lakes and 
other navigable waters of the country, above as well as below the flow of 
the tide, are, in the strictest sense, entitled to the denomination of navi¬ 
gable waters, and amenable to the admiralty jurisdiction, there seems to 
be no sound reason for adhering to the old rule as to the proprietorship 
* of the beds and shores of such waters. It properly belongs to the States 
by their inherent sovereignty, and the United States has wisely abstained 
from extending (if it could extend) its survey and grants beyond the lim¬ 
its of high water. The cases in which this court has seemed to hold a 
contrary view depended, as most cases must depend, on the local laws of 
the States in which the lands are situated. In Iowa, as before stated, the 
more correct rule seems to have been adopted after a most elaborate in¬ 
vestigation of the subject.” 

Whether the distinction suggested by Mr. Justice Bradley, between 
property held by the State for public purposes and private property, be or 


139 


be not sound, the doctrine has no application to the present case, and, as 
the Circuit Court case was not brought for review to this court, the sug¬ 
gestion remains unadjudged. 

The so-called Hawkins Point Light-house case was an ejectment 
brought in the Circuit Court of the United States for the District of 
Maryland to recover possession of the land covered by a light-house 
erected on land lying under the waters of a tide-water navigable river, by 
the Light-house Board, in pursuance of acts of Congress. The plaintiff 
claimed to be the owner of the submerged land, and the action did not 
involve the question of access to the river. Judge Morris held that the 
plaintiff was not entited to recover; and, although stating that “the 
Court of Appeals of Maryland, whenever called upon to declare the 
nature of the title of the State and its grantees in the land at the bottom 
of navigable streams, has uniformly held that the soil below high-water 
mark was as much part of the jus publicum as the stream itself,” ex¬ 
tended Mr. Justice Bradley’s suggestion in the New Jersey case, and 
declared that the plaintiff, as grantee of the State, had no private 
property in the submerged land entitled to constitutional protection. 
As the structure was a light-house, the case might have been governed 
by peculiar considerations, but the learned judge of the Circuit Court 
seems to have gone further, and to have held that at a matter of Fed¬ 
eral law, ”In the hands of the States or of the State’s grantees the 
bed of a navigable river remains subject to an easement of navigation, 
which the general government can lawfully enforce, improve, and 
protect, and that it is by no means true that any dealing with a navi¬ 
gable stream which impairs the value of the rights of riparian owners 
gives them claim to compensation. ” If by this is meant that riparian 
owners may be deprived, without compensation, of access to navigable 
streams abutting on their land by reason of a supposed servitude or 
easement imposed by the power granted to Congress by the Constitu¬ 
tion to regulate commerce, then, for the reasons heretofore given un¬ 
der the authorities cited, such a view can not be sustained. The case, 
under the name of Hill v. United States, was brought to this court, 
but the writ of error was dismissed on an independent ground, which 
rendered it unnecessary for this court to pass upon the questions ruled 
in the court below. And the question of the right of the plaintiff to 
be compensated for deprivation of his riparian rights was not consid¬ 
ered, and, indeed, could not be, as it was held that neither the Cir¬ 
cuit Court nor this court had jurisdiction: Hill v. United States, 149 
U. S., 593. 

Yet this was the case which the Supreme Court of Michigan said 


140 


in their opinion "appeared to be exactly in point and to rule the 
present case." 

The only other case relied on by the Supreme Court of Michigan 
was Scranton v. Wheeler, 57 Fed. Rep., 803; 16 U. S. App., 152, 
being this identical case, which had been removed from the State to 
the Federal Court. It was subsequently brought to this court, but 
was dismissed because the record did not show that a Federal question 
had been raised or presented in the plaintiff’s statement of his case in 
the State court. Accordingly the cause was remanded to this State 
court, and subsequently reached this court by writ of error to the Su¬ 
preme Court of Michigan. While the case was in the Circuit Court 
of Appeals, an opinion was filed by Circuit Judge Lurton, in which, 
without adverting to the law of the State of Michigan, or citing any 
decisions of the Supreme Court of that State, in respect to riparian 
rights, he held that the right of the plaintiff of access to the navigable 
water was subordinate to the power of the Federal Government to con¬ 
trol the stream for the purposes of commerce, and that the plaintiff 
was therefore not entitled to compensation for the extinction of his 
right. 

The proposition, frequently made, that the power of Congress to 
regulate interstate commerce, and therefore navigation, is paramount, 
can properly be understood to mean only that, as between the author¬ 
ity of the States in such matters and that of the general government, 
the latter is superior. It has no just reference to questions concerning 
private property lying within the States. Much less can it be rightly 
used to signify that such power can be exercised by Congress without 
regard to the right of just compensation when private property is taken 
for public use. 

The suggestion that "the riparian owner acquired the right of ac¬ 
cess to navigability subject to the possibility that such right might 
become valueless in consequence of the erection under competent au¬ 
thority of structures on the submerged lands in front of his property, 
for the purpose of improving navigation, ’ ’ would seem to be irrelevant, 
because the liability that his private property may at all times be taken 
for public uses is known to every one. But hitherto it has not been 
supposed that the knowledge of such liability deprives the owner of 
the right of compensation when his property is actually so taken. 

Nor can the statement that, in the opinion of this court, "it was 
not intended by the framers of the Constitution that the paramount 
authority of Congress to improve the navigation of the public navi¬ 
gable waters of the United States should be crippled by compelling 


141 


the Government to make compensation for the injury to riparian own¬ 
er’s right of access to navigability that might incidentally result from 
an improvement,” be admitted. The intention of the framers is seen 
in the provisions of the Constitution, and in them the right to take 
private property for public uses is indissolubly connected with the 
duty to make just compensation. It can not be supposed that a recog¬ 
nition of such a duty would cripple the Government in the just exercise 
of the power it incidently possessed to regulate interstate navigation. 

As, then, the Supreme Court of Michigan considered the question 
solely as a Federal one, in which it supposed it was controlled by the 
Federal cases cited, this court has jurisdiction to review its judgment; 
and as by that judgment the plaintiff in error has been refused the 
protection of the Constitution of the United States claimed by him, 
I think the judgment should be reversed and the cause remanded to be 
proceeded in according to law. 





NUMBER 30 

OCCASIONAL PAPERS 

ENGINEER SCHOOL 

UNITED STATES ARMY 


THE 

RECONNAISSANCE MAP 
OF CUBA 

1906-7 


Ry 


First Lieutenant Julian L. Schley 
Corps of Engineers 


WASHINGTON BARRACKS, D. C. 

PRESS OF THE ENGINEER SCHOOL 

1908 


^ y! 










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♦ 




















NUMBER 30 

OCCASIONAL PAPERS 

ENGINEER SCHOOL 

UNITED STATES ARMY 


THE 

RECONNAISSANCE MAP 
OF CUBA 

1906-7 


By 


First Lieutenant Julian L. Schley 
Corps of Engineers 


WASHING I ON BARRACKS, D. C. 
PRESS OF THE ENGINEER SCHOOL 

1908 














The Reconnaissance Map of Cuba, 1906-7. 

[Note. —The information contained herein which relates to the work of the central 
office was obtained while assistant to Major W. C. Langfitt, Corps of Engineers, 
Chief Engineer of the Army of Cuban Pacification. 

The remarks concerning the fieldwork are the results of personal experience and 
of conversation with officers of Engineers who were in charge of reconnaissance 
detachments in the field.] 

Soon after the arrival in Cuba of the Army of Cuban Pacification in 
October, 1906, the Commanding General directed that the existing “Re¬ 
connaissance Map of the Island of Cuba” be revised under the direction 
of the Chief Engineer, Major W. C. Langfitt, Corps of Engineers. The 
planning and organization of the entire work, the carrying to completion 
of the fieldwork (except some subsequent corrections) and of a large part 
of the drafting were completed before his relief, in June, 1907. 

PRELIMINARY WORK. 

The existing reconnaissance map had been prepared under the direction 
of then Majors W. M. Black and H. F. Hodges, Corps of Engineers, in 
1902-3. It is a compilation of charts, surveys, and geographical maps, 
all mainly from Spanish sources, and reconnaissances of limited extent by 
United States troops. The scale is 1:250,000. (This map will be here¬ 
after referred to in this paper as the old map.) 

The old map was divided into quadrilaterals each one-half degree of 
longitude by one-half degree of latitude. These quadrilaterals were en¬ 
larged by pantograph to the scale of 1:62,500 on vellum paper. From 
each of these enlargements a brown negative was made on brown process 
paper. From each of these were made two or more blue prints with blue 
lines on white ground. At least one of each of these sets of blue prints 
was cut into thirty-five quadrilaterals and mounted on cardboard cut to 
fit. (These will be referred to hereafter as cards. The uncut blue prints 
will be referred to as uncut sheets. The maps submitted by the field parties 
to the central office will be referred to as field sheets.) 

This work of enlargement and preparation of cards and uncut sheets 
was done by civilian draftsmen in the office of the Chief Engineer, with 
the exception of a few sheets by the Second Battalion of Engineers. 

For purposes of general supervision and co-ordination of work, general 
co-ordinating reconnaissance officers were appointed by the Chief Engineer. 


2 


To these officers were assigned portions of the island, in some cases com- t 
prising several quadrilaterals. It was the duty of these officers to assign 
the work to the field parties working in their respective territories, to see 
that their work did not overlap unnecessarily, that they connected satis¬ 
factorily, and to standardize the work. 

To each general co-ordinating reconnaissance officer were sent one or 
more uncut sheets and one or more sets of cards of each quadrilateral in 
his territory, with the following “ Instructions for Reconnaissance Parties:” 

Instructions for Reconnaissance Parties. 

1. It is desired to obtain as much information as possible which will be perma¬ 
nently of value from a military standpoint of the portion-of the island surrounding 
your station assigned your command for mapping. 

2. The accuracy of the data finally sent in is of much greater importance than 
the quantity, but no unnecessary delay must occur. 

3. The work should be done by officers, assisted by such enlisted men as are 
competent to perform this duty. 

4. You will be furnished two or more copies of a map covering an area in the 
vicinity of your assigned station. 

5. This map will be on a scale of 1:62,500, which is so nearly 1 inch to 1 mile 
that all your plotting may be done on this scale of 1 inch = 1 mile. 

6. One copy of the map (previously prepared in this office) will be found to con¬ 
sist of sections of convenient size for the pocket. 

7. The method of procedure will be as follows: Each party will take into the 
field one or more of the cardboard sections and will actually proceed over all roads, 
railways, public and private (plantation) and important trails. Lines of communi¬ 
cation not shown on the map will be followed and drawn in. Lines shown on the 
map, but no longer existing, will be crossed off over extent not existing and marked 
“Out.” 

a. As the party proceeds it will correct when necessary any inaccuracies or omis¬ 
sions on the map, showing in their correct locations all roads, buildings, bridges, 
important culverts, fords, telegraph or telephone lines, fortifications and other objects 
of military importance. 

b. Contouring will not be attempted on flat or ordinary rolling country, but hill 
forms, prominent ridges and accessible mountains will be showm by contours, 50 feet 
intervals, the datum point of contours being noted. 

c. The length and character of bridges will be noted on the map. 

d. Swamps, woods, cultivated land, etc., will be shown by conventional signs. 
Villages and towns will be shown in true plan with their names correctly spelled. 
(See paragraph h.) 

e. At night the day’s work will be transferred in ink to the large map. 

f. If parties are to be out more than one day and there is no copy of the large 
map for them to carry, they will take with them ink and drawing materials and go 
over at night with ink each day’s work on the cards; as soon as possible thereafter 
it will be transferred to the large maps. This is important , for if notes and hasty 
field sketching be not transferred at once it will be found, after a short lapse of time, 
that even the man who made them can not interpret them intelligently. When parties 


















































































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3 


are working simultaneously on adjacent areas, care must be taken that when streams, 
roads, etc., cross the dividing line, the locations check as found by the two parties. 
This should be carefully done before sending in the maps. If a sheet is sent in 
before the adjacent sheet is reconnoitered, the roads, streams, etc., should be carried 
well across the boundary between the two sheets to some well-defined point which 
can be easily identified by a later party working on this adjacent sheet. Such verbal 
description as may be necessary for aid in identification of the point should be at¬ 
tached to sheet sent in. 

g. Hard pencils will be used for fieldwork on the cards. When gone over on 
cards or transferred, red will be used for contours, blue for streams, black for roads, 
buildings, etc. 

h. In addition to the above, a notebook will be kept by each party, in which will 
appear: 

h a. Information as to the roads and trails, width, surfacing (metal or earth), the 
grades, noting especially the length and slope of very steep grades and class of trans¬ 
portation for which road is available. 

hb. Sketches to convenient scale of all towns and villages with locations of all 
public and important buildings, railways, stations, water tanks, yards, tunnels, etc. 

he. The notes will show the number of houses, stores, water supply character, 
quantity and quality, and any other information of military value. 

hd. Notes as to material and animal resources of the country traversed. 

he. Sketches and notes as to important bridges, character, length, width, material, 
condition. 

hf. Notes as to streams, depth, width, quantity and quality of water, fords, and 
whether or not there is evidence of considerable fluctuation in the water level. 

hg. Good camp sites and capacity should be noted, fuel, grass, water supply, etc. 

h h. Location, description and condition of existing fortifications and blockhouses. 

hi. Plantation or private railroads: Name, address of superintendent, length, 

gauge, weight of rails used, number and capacity of locomotives, number, kind and 
capacity of cars, and such other data, such as notes as to bridges, tunnels, coaling 
stations, as might prove of value. 

8. Distances will be determined by pacing, by the ascertained rate of the walk of 
the horse and time intervals, by odometer, cyclometer. 

Directions by compass, noting the compass variations if possible. 

Distances to prominent objects off the line of trail will be estimated, checked by 
compass bearings. 

9. Advantage should be taken of all existing sources of information, such as local 
maps, known elevations along railways, etc. 

10. Large sheets should be sent in to this office as soon as completed. The 
mounted sections should be sent in as soon as work on them is completed and trans¬ 
ferred to the larger sheets. 

Office, Chief Engineer, Army of Cuban Pacification, 

Marianao, Havana,’Cuba, October, 1906. 

FIELDWORK. 

The fieldwork was done by troops of Engineers, Cavalry, Infantry, and 
Marines. The portions of the island covered by the fieldwork of the 
several branches of the service are shown in Fig. 1. 


4 


In general, the territory adjacent to a post was assigned to the troops 
stationed at that post. The portions of the island distant from posts gar¬ 
risoned by troops were assigned to the Engineers. 

The composition of the field parties varied considerably, and the instru¬ 
ments used varied according to the preference of the parties and the avail¬ 
ability of instruments. The instruments most generally preferred were 
the prismatic compass or the box compass, Abbot’s celluloid protractor, 
aneroid barometer, notebook, and watch or football timer. By some the 
sketching case was used. Distances were plotted by time or pace scales. 
With few exceptions the fieldwork was done mounted. A sufficient num¬ 
ber of barometers was not available. Clinometers were used by some 
parties as a substitute, but many parties were without either, making it 
necessary to sketch hill forms entirely by eye. 

The old map proved to be so incorrect in many parts, especially in those 
parts compiled from Spanish maps, that the cards, and in many cases the 
uncut sheets, could not be used in the manner contemplated. Thus the 
task in those parts of the island became one of making a new reconnais¬ 
sance map. When this fact was reported to the office of the Chief En¬ 
gineer, instructions were issued to accept the portions of the main railroads 
and the large towns as shown on the uncut sheets as a system of control. 
The field parties in those parts of the island proceeded to make road 
sketches of all roads and trails and to fit them together and plot them on 
the assumed points so as to make complete and connected road maps of 
the sections assigned them. The country between the roads was filled in 
from the best information obtainable on the ground. Even where the old 
map was greatly in error, it proved valuable in furnishing names of places 
and rivers. 

The two-man method of reconnaissance with prismatic compass, Abbot’s 
protractor, and notebook proved to be by far the most satisfactory method. 
The sketcher handles the notebook, does the plotting, puts in the details, 
and directs the assistant sketcher. The assistant takes the necessary obser¬ 
vations for azimuth and distance. 

Where it was possible to use the cards, the procedure was simple. By 
placing a box compass on the card so that the sides of the card and the 
sides of the box were parallel, the sketcher could travel with the card con¬ 
tinuously oriented in front of him. With the aid of his scale he could 
make minor corrections and could add details as he traversed the roads. 

As soon as these maps were finished they were submitted with the plans 
of towns and notes to the chief engineer officer. 


5 


PREPARATION OF POLYCONIC PROJECTIONS AND PLOTTING 
OF EXISTING INSTRUMENTAL SURVEYS. 

While the fieldwork was being done the base of the finished map was 
being prepared in the Chief Engineer’s office. 

The degree and half degree meridians of longitude and circles of latitude 
covering the island were plotted on a polyconic projection to the scale of 
1:62,500. The quadrilaterals thus formed correspond to those of the old 
map—that is, to the uncut sheets. United States Coast and Geodetic 
Survey Tables for a Polyconic Projection of Maps, second edition, was 
used in plotting this projection. The plotting was done on rolls of detail 
paper, each roll receiving two circles of latitude, and thus containing one 
east and west row of quadrilaterals throughout the length of the island. 
The intersecting points of the meridians and circles had to be plotted on 
one side of the center line only, because these points pricked through to 
the back of the roll gave the symmetrically placed points on the opposite 
side of the central line. (These rolls will hereafter be referred to as pro¬ 
jection rolls.) 

All existing charts of the Hydrographic Office, Navy Department, of 
the coast of the island w ere then transferred to the projection rolls to the 
proper scale. The large scale charts were used first, and the coast line 
between these u'as filled in from a small scale chart of the entire island. 
Such coast lights as w r ere not given by these charts were plotted from 
co-ordinates given in Servicio de Faros, Departmento de Obras Publicas. 
By sextant observations of single altitudes of stars with chronometers and 
telegraphic signals from the Government observatory at Havana for longi¬ 
tude, and by sextant observations on Polaris for latitude, the positions of 
four of the principal towms along the east and w*est railroad line through 
the island w r ere determined by two officers and a detachment of enlisted 
men of the Second Battalion of Engineers. Instrumental surveys of the 
two trochas across the island were made by two officers and detachments 
of the same organization. All these w T ere plotted on the projection rolls. 
All railroads of which existing surveys w’ere obtainable were similarly 
placed on the projection rolls, as w r ere also such instrumental surveys in 
the office of the Obras Publicas as proved to be of value. This formed 
the base of the new r map. 

DRAFTING OF THE FINAL SHEETS. 

This work w T as done in the office of the Chief Engineer. 

Tracing linen was cut into sheets of sufficient size for one quadrilateral 
with a margin of 18 inches on the right. (These sheets will hereafter 


6 


be referred to as final sheets .) Each was given a number corresponding 
to the quadrilaterals on the projection rolls. On these final sheets were 
then traced from the projection rolls the meridians of longitude and 
parallels of latitude enclosing the corresponding quadrilateral and every¬ 
thing contained therein. 

These final sheets were then ready to receive the details as given by the 
held sheets. The old map being a lithograph, the enlargements from it 
and the blue prints from the enlargements to a still greater extent were in 
.error as to scale. This, and the fact that the fieldwork was done with so 
little accurate control, made it impossible to trace the field sheets. Each 
road and stream was consequently adjusted so as to fit the parts of the 
final sheets traced from the projection rolls. In doing this, care was 
taken to first adjust those roads of the best class which connected most 
directly the well defined and positively identified points taken from the 
projection rolls. The road and stream crossings of these roads were put 
in at the same time. Next were adjusted the most direct connecting 
roads, and, finally, the winding roads and unimportant trails. By this 
means the inaccuracies of the field sheets were so thoroughly distributed 
that, if the final sheet and its field sheet were placed side by side, the one 
would appear to be a tracing of the other. 

The method of adjusting a road is that in common use, which is as 
follows: Suppose the distance between the extremities of the road on the 
field sheet to be less than that on the final sheet as traced from the pro¬ 
jection rolls. The latter is placed over the former so that the same 
amount overlaps at each end and so that a straight line will pass through 
the four extremities. A very short section of the road halfway between 
the extremities is traced. Each half of the road is then treated as was the 
entire road, the middle point and one end being made to overlap an equal 
amount, and a short section of the road at the middle of the half is traced. 
This method is continued, the road being further subdivided, until the 
short sections traced form a continuous road. Adjacent features are 
traced with the short sections. 

As far as it was possible to do so, the conventional signs and abbreviations 
adopted by the War Department were used. In a legend at the top of the 
margin at the right were placed those conventional signs and abbreviations 
whose exact meaning might not be known to all. (See map opposite 
page 6.) The objects aimed at in adopting these conventional signs, their 
size, and their spacing were (1), that the information which the map fur¬ 
nished would be conspicuous in proportion to its military importance; 
(2) that the map would be “open”—that is, that the symbols were well 
spaced so as to prevent confusion, to facilitate catching names quickly, and 


FRECONNTAIS SAN CE MAAF 3 OF CUBA 


1906-7 


SKeet ISIo. 54 


- LEGEND- 

H—l—f—H Pub/tc Pai/road 
, i | J- Private Railroad 
. . .. - -- Met a led No ad 

===-==- Roadpassable for loaded escort wagons 

_ Road passable for but/ carts 

— ——- Horse Trail 

Town wrfh afreets 
House. 

Group of houses. 

Hums. 

Block House 
Church. 

So par m/H m working condition. 

Sugar null ruined 
Point known by name Ho houses 
Telegraph /me. 

Well 

Windmill 
lighthouse. 



-AB8PE V/A T/0N5 - 



© * 





Thick Woods 


Thin Woods. 


Open Country 


Arroyo 

Small Stream 
G.S. Blacksmith Shop 

3 Brick 
Cem. Cemetery 
Con. Concrete 
Col. Culvert 
O.S. Orug Store 
Embo 
fns* 


Est9 


Embarcadero 
l and mg Place 

Ensenada 

Core 

Estuar/o 

Estuary 

fordable 




* + 


G. S. General S tore 


I* 

HP. 

HE 

P*a 

R 

Sts. 

SR 

S 

St. 

SM 

Tres 

Tr. 

W 


Iron or Steel 
Ring Post. 

Hof fordable 

Punt a. 

Point 

Rio 

Rirer 

'Santa. 

Saint. 

School House. 

Station, Railroad 

Stone 

Saw Mill 

Trestle 

Truss 

Wooden 


SugarCane. 


* * 
* * 


COR TOUR INTERVAL WO fE£T. 


Scale of kilometers 


t fr O 



Scale of Statute Miles 


Other CuRirat/on. 


-NOTES - 

Communications 

AH roads show signs of being very muddy in wet weather There are few bridges ; at the fords the banks are generally steep and most of the streams are unfordable at high water. The Bayamo 
ORQUETA - 6UISA - CALA8AZAL road ts fairly good as far as GVisa; beyond this place rt/s rough and rocky. The 61/15A -5TA BARARA road is rough. The BAYAMO-DATIL - BUERCITO road is 
very bad in places-;just beyond Mahay are two hills with steep slopes. The PASO REAL- BAB/NEY road is rough. 

Towns 

dABtNEY. Population 350; 60 houses; 6 stores. Very good water from IE wells. 

BARRANCAS. Population 75; !4 houses and E5 scattered within half mile. Plenty of good water from Rio due/. 

BA TAMO. See plan below 

BUERCITO. Population EOO; E4 houses; 5 stores. Plenty of good wafer from Rio Buey. 

CAL A MB ROC/A. Scattered settlement. Population EOO; 40 houses;Estores. Plenty of good water. 

CANABACOA. Scattered settlement. Population EOO; 1 store. Good water from Rio Canabacoa 
CAS/BOCOA. Population JOG, EO houses; 1 store. Plenty of good water from Rio Bayamo. 

6WSA Population 350; 95 hous es; 4 stores; tbutcher shop. 6ood water from welb and small spnng. 

RUMILLADERO. Scattered settlement. Population 600; 100 houses,- 5 stores. 6cod water from wells in bed of Rio Batafuaba. 

SANTA RITA. See p/an bebw 

SAN FERNANDO. Population fOO; EO houses; Istore. Water from river is poor but plentiful 
SOFIA. Population 500; 50houses Plenty of good water pumped from Rio Buey. 

VE6UITA5. See plan be/ow 
YARA See plan below. 

ZARZAL. Population tOO; ES houses; 7stores. Plenty of good water from Rio Ya/a. 

Streams 

ARROYO BABA TUABA Averages 14 feet wide, Ve foot deep; banks 8 feet high and sloping;bottom hard; water good. Between La Safand Escondido stream bed is very small. At places mlty 
be entirely dry in dry season. 

RIO BAJA Dry at places during dry season. At ford east of Einca Buena banks IS feet high and sloping. 

RIO BAYAMO. Bottom grave/; water good; 3 feet deep; banks 30 to 40 feet high, and steep except at fords. Above DatH if averages 50 feet wide; banks 30 feet high. Fords at Bayamo, 5ta Ana, and 
Los Mangas are from 90 to EE5 feet wide. Evidence of much fluctuation 

RIO BUEY Bottom hard; water good; averages 1 h fee! deep Above San Antonio fords are 75 to EE5 feet w/dc androughy banks jteep. At hmonar and Canuco fords are 30 feet wide, banks about 
30 feet high Ford near Palmarita has low hanks. 

RIO CJWABACOA A small stream; bottom sandy; water good 

RIO CAJT/LLO Bottom gravel; water good; 15 to 50 feet wide; Efeet deep, bonks 10 to EOfeet high and generally sloping. 

RIO GUAJACABO. Rater bad; EO to 50 feet wide; E feet deep; bonks generally sloping ford at San Fernando has sandy bottom. For is bebw this point have muddy bottoms. At Cespedes the banks are 
very steep. 

R/0 OUiSA Bottom rocky; water good; 15 to 60 feet wide; t foot deep;• banks sloping and generally fow. 

R/OJ/COTEA. Bottom hard; water good; averages 17 feet wide; t foot deep; banks 6 feet high at fords at5taRita and El Palo, 10 to E0 feet high at other fords. 

R/0JI6UANI. Bottom very muddy; water good; EO feet wide; E feet deep. 

ARROYO MABAY. Bottom hard; water good; 15 to 40 feet wide; banks IE to 30 feet high, steep at fords above Mahay, sloping at other fords Dry in places during dry season. 

RIO YAO. Bottom rocky; water good; banks generally bw. Fords at and above Cayo Redondo 50 to 100 feet wide; 1 foot deep; bsnks sloping. At other fords WO to 150 feet wide; E feet deep, banks 
sleep. At ford at Lortgostura banks 15 and 30 feet high. 

RIO YARA Bottom sandy and rocky; water good: at forks 5Q to WO feet wide; 1 '/a feet deep; banks 8 feet high and generally sloping. 

Resoures . 

This ikacatf/e raising section. Scattered Through the open, flat country are appr oximafely 14,000cattle and EOO buff carts. There is excellent grazing but the grass is much withered 
during ttb latter part of the dry season. 

Sugar Mills 

/NOE NO SOFIA. A small mill in bad repair. Accomodations for 500men. Vfoter pumped from river. 

Campsites 

During the dry season a camp site can be found anywhere in the flat section, where there is water. The wells at the houses generally furnish very good water but the amount is limited. 
During vety dry weather water is very scarce. There is no grass m the mountains. Along any one of the following rivers there are plenty of grass and water: Bayamo, Buey, CauhUo, Jtcofea, Ybo, fdra. /n 
very wet weather these sites would be muddy. This territory is healthy except perhaps the northwest corner. 

Miscellaneous 

There ire many barbed wire fences. The only blacksmith shops which shoe animals are at Bayamo and 5fa. Rrfa> 


All fieldwork was done in dry season 


/ Pubhc School 
Z Tetejroph and f\>$r office 



•SeO/9 6 •/mils 

Population 600, lOO wooden Houses; 
0 stores. Plenty of good water from Rio 

Buey. 


To comOnbartaderc 


/ Puny! Guard Quarters 
t Telegraph Office 

3 Otd Port 

4 Court House 

5 Blacksmith Shop 

6 Public School 

7 Wheelwright 

8 Police Station 

9 Ptazp m 

to Hospital 

// Post Office 
/Z Brick kiln 
IS Water Works - 
H Saw Mill ofifF 

&PT 



Population < 9000, 60stones; J drug stores; 

3 Butcher shops. Plenty of good water pumped 
from Pin Bayamo. Most of the buildings are 
matomy, many in ruins. 

BAYAMO 



Office of the Chief Engineer-, Armyaf Cuban Pacification 

ComplftXad Octok*** 









































































































































































































































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7 


to render legible additions or notes which might be made while using the 
map in the field; (3) that the symbols should suggest what they are in¬ 
tended to express; (4) that the map could be reduced one-half in scale, if 
desired. 

The object of the notes was to furnish some of the information of 
military importance which could not be placed on a map of this scale. 
1 he notes submitted by the reconnaissance parties were condensed and 
arranged under subheads in the margin on the right immediately under 
the legend. (See map opposite page 6.) 

The plans of the large towns in each quadrilateral were transferred to 
the scale of 6 inches to the mile and grouped in the margin on the right 
under the notes. An exception was made to this in the case of the city 
of Havana, which was placed on a separate sheet. 

A key map, 8 inches by 3 inches, was placed on each final sheet in the 
bottom of the margin on the right. 

DIFFICULTIES AND SUGGESTIONS. 

Preliminary Work. 

In making a map of as large a territory as the island of Cuba, the first 
step should be to obtain a system of control. This was not done in this 
case for the following reasons: (a) it was imperative that information of 
the country should be obtained as soon as possible, because it was not 
known at what time it might be immediately needed ; considerable time 
would have been required to obtain an accurate system of control, and it 
was the opinion of the Commanding General that this time could not be 
spared; (b) at the outset it was thought that the old map was accurate 
enough to form a satisfactory control. This map was tested around 
Havana and was found to be satisfactory. It was not until the fieldwork 
was well under way that it was realized that the old map was inaccurate in 
many parts of the island. 

The control, previously explained, which was used in the office of the 
Chief Engineer was a makeshift substitute. It was really a control for 
fitting the quadrilaterals together. This substitute, however, gave sur¬ 
prisingly satisfactory results. If the work could have been approached 
more deliberately, without such haste to obtain information in detail, the 
skeleton placed on the projection rolls, added to by astronomical locations 
of more points and by rough traverses, would have made a satisfactory 
system of control for the field parties. 

Fieldwork. 

The task assigned to a field party was, in many cases, one quadrilateral, 
or approximately 900 square miles. Difficulty was experienced in making 


8 


a reconnaissance map of territory this large without some accurate system 
of field control. In those parts of the island in which the old map showed 
correctly the large towns and important roads these could be used as a: 
system of control. But such places were not numerous. In the other 
parts of the island, after trying several schemes, the following organization 
and procedure were found to give the best results: 

Organization of Detachment. 

1 officer, mounted. 

4 sketchers, mounted, 

4 assistant sketchers, mounted. 

4 packers (2 of whom are regular civilian packers), mounted. 

4 assistant packers (who can also do simple cooking) r mounted. 

12 pack mules. 

Base Camp Guard. 

1 non-commissioned officer, mounted. 

2 cooks. 

4 privates. 

1 private, Hospital Corps. 

Total, 

1 officer. 

1 non-commissioned officer. 

23 men. 

18 mounts. 

12 pack animals. 

Tentage for Base Camp. 

1 “A” tent for officer and for drafting work. 

3 conical tents for the men. 

1 “A” tent for rations. 

1 “A” tent for grain. 

1 fly for kitchen. 

In addition, each man takes his shelter half and poncho for use away from the 
base camp. 

For evident reasons it is imperative that every member of the detach¬ 
ment be steady and trustworthy. 

The sketchers will, in many cases, be non-commissioned officers. At 
least two of them should be very experienced in road sketching. If pos¬ 
sible, the assistant sketchers should be picked by the sketchers themselves. 

Two of the packers should be regular civilian packers, because it is not 
believed that without them can the pack animals be kept in good con¬ 
dition under trying work. And in case the detachment is from a dis¬ 
mounted organization, general supervision of the entire stock will neces¬ 
sarily fall on these men. The other two packers should be well trained 
in packing and must have had some experience with animals. The 


9 


assistant packers should know enough about packing to throw the hitch 
from one side. They should be able to do simple cooking for four men. 

The non-commissioned officer should be thoroughly reliable, so that 
the officer can leave the base camp in his charge. 

The Hospital Corps private should be well instructed in the application 
of simple remedies. Military posts were so numerous throughout Cuba 
that a man taken seriously sick could be sent to the nearest post for 
medical attention. 

Unless veterinarians and blacksmiths are available in the territory, some 
member of the detachment must be familiar with the common diseases of 
horses and their remedies and must be able to shoe animals. 

The officer and the sketchers are armed with the revolver; all other 
members of the detachment are armed with the rifle (except the Hospital 
Corps private and the civilian packers). 

The trips away from the base camp are often very fatiguing; conse¬ 
quently every comfort in the base camp adds to the rest received between 
trips. 

It was not found advantageous to take with the detachment more than 
one month’s rations and forage. If more than this was required, it was 
shipped by a quartermaster upon application. 

The base camp should fulfil as nearly as possible the following condi¬ 
tions: it should be in a sanitary location, should be near a railroad station 
or point of entry of a ship line, and should be near the center of the ter¬ 
ritory to be mapped. 

From the base camp sketching parties are sent out composed of the 
following: 

1 sketcher, mounted. 

1 assistant sketcher, mounted. 

1 packer, mounted. 

1 assistant packer, mounted. 

3 pack animals. 

A party so composed can remain away from the base camp for ten days. 
Grain alone is taken for the animals, forage being purchased or grazing 
resorted to on the road. The detachment is capable of furnishing four 
such parties, leaving the camp guard at the base camp. 

For convenience, suppose the sketching parties to be numbered 1, 2, 3, 
and 4, and the sketchers of parties Nos. 1 and 2 to be experienced road 
sketchers. The first step is to have parties Nos. 1 and 2 each make a large 
loop, each beginning and ending at the base camp. The loops should also 
cross each other at some point, and they should reach near the boundaries 
of the territories to be mapped. In making these loops a road sketch is 


10 


made of the route, shoeing all details, especially crossroads and informa¬ 
tion which will make them easily recognizable to other parties. An ob¬ 
scure trail should not form part of a loop, nor should a road of steep 
grades or through swamp. Great care should be taken in the distances 
and directions of the courses, but the sketcher should not attempt to force 
his work to close. When the parties return to the base camp, the officer 



adjusts these loops so that they will close on the base camp and on their 
point or points of crossing, throwing the error of closure of each through¬ 
out its entire length. These and as many other loops as seem necessary 
form the control for the map. In Fig. 2 may be seen four such loops. 
While parties Nos. 1 and 2 are making these loops, parties Nos. 3 and 4 
are mapping the territory in the vicinity of the base camp. 

The loops having been adjusted and plotted, four of the sections into 
which the territory is thus divided are assigned to the four parties. Each 
sketcher is furnished a tracing of the portions of the control loops sur¬ 
rounding the section assigned to his party, and he is instructed to fill in 





11 


the details of that section. After proceeding there with his party, he 
starts at a crossroad and makes a road sketch through his territory to 
another crossing of the control loops. If his sketch does not fit between 
the two crossings, he adjusts it so that it will fit and inks it in on his 
tracing. He continues in this manner until all the roads and trails in that 
section are covered, when he returns with his party to the base camp. 
While the party is resting, the officer transfers the work to his map and 
compiles whatever information is desired. By continuing this method 
the territory is completely mapped. When possible, the parties in the 
field are visited by the officer. 

This method is also well adapted to contouring with the aneroid barom¬ 
eter. A barometer is carried by the parties making the control loops, and 
readings are taken at easily recognizable points. Upon return, these readings 
are corrected by periodical readings on a barometer kept at the base camp. 
Using these corrected readings as bench marks, the parties which fill in the sec¬ 
tions are able, with the aid of barometers, to do very satisfactory contouring. 

By this method, and with a detachment as here described, 900 square 
miles of average Cuban territory can be carefully mapped in from five to 
six weeks. If the duties of quartermaster, including the property and 
money papers, are to be considered, this time must be doubled or the de¬ 
tachment must have an additional officer. 

The above plan is believed to be well adapted to the making of a recon¬ 
naissance map of a large territory without a system of accurate control. The 
method with cards, as originally planned, is an excellent one for making 
minor corrections and filling in details on a map which is, in the main, an 
accurate one. 

A large part of the island of Cuba, especially the fertile part, is divided into 
tracts of land called “fincas.” Some of these are very large, covering many 
square miles, and all of them are named. It being impracticable to show the 
boundaries of these fincas on the map, difficulty was experienced in deter¬ 
mining the position which their names should occupy. As a rule, the names 
were placed near the store or the important buildings of the finca. The same 
difficulty was found with named districts and with political divisions, such as 
“barrios,’’which usually have thesamenames as their principal municipalities. 

Many streams were difficult to follow, because they would disappear 
and continue as subterranean streams for several miles before reappearing. 
And many streams which in the rainy season carried considerable water 
were dry in the dry season and could then be easily passed unnoticed. 

The season of the year affected greatly the progress of the fieldwork, 
the best time being the first half of the dry season. The roads of Cuba 
are, as a rule, extremely bad ; consequently, during the rainy season, it 


12 


was almost impossible to go any distance from the few macadam roads 
which exist. During the last of the dry season most of the small streams 
and many of the wells throughout the country had become dry, and the 
supply of water for the stock became a serious problem. 

Those detachments which remained in the field for a month or longer 
experienced great difficulty in keeping their animals in good condition. 
American horses failed rapidly, lost weight, and became very susceptible 
to sickness. On account of the many swamp roads and mountain trails 
traversed their feet suffered considerably. It was often found impossible 
to work the horses more than four days in a week. Blowflies were every¬ 
where present in great numbers, and they never failed to find the slightest 
break in an animal’s skin. The maggots which they produced could be 
killed with creolin, but it was difficult to keep the wound from being again 
infected before it was sufficiently healed not to attract these flies. Mules 
stood the work much better than horses. They proved very satisfactory 
as mounts, some of the sketchers preferring them to horses. The native 
pack (seron), when handled by natives on Cuban animals, was fully as 
satisfactory as the regulation pack and pack mules. 

One of the detachments remained in the field continuously for three 
months. Its experience was that the time scales originally made for the 
mounts were of no value after a few days’ work. The animals’ time of 
traveling a mile changed considerably and, in many cases, irregularly 
during the first month. During this time it was necessary to change the 
pairing of the mounts of the sketchers and assistants so as to keep equally 
rated animals working together. For this reason the animals were peri¬ 
odically timed over a measured distance and new scales made for them. 
This detachment found it impossible to keep American animals in good 
shape under this trying work by feeding oats and green forage. Hay was 
finally procured and substituted for the green forage while in the base camp. 

The general co-ordinating reconnaissance officers play a very important 
part in the mapping of a large territory under such a system as that used 
on this map. It is in their power to save the central office an immense 
amount of work or to cause it endless trouble. 

Preparation of Polyconic Projections and Plotting of Existing Instrumental 

Surveys. 

The coast*chart which furnished the coast line between the harbor 
charts was of small scale and had to be enlarged about thirteen times. 
This gave a coast line only approximately correct in detail. 

Great difficulty was experienced in using some of the railroad maps. 
Some of them showed no meridian lines, and the meridian lines on some 
of them were conflicting. This difficulty was overcome by locating astro- 


13 


nomically the principal railroad towns, especially the termini of systems. 
A few of the railroad surveys were very inaccurate, some being primary 
location surveys and some being mere reconnaissances. Those which 
were very inaccurate were easily recognizable when compared with the 
field sheets after the latter had been turned in. In placing such railroads 
on the final sheets due weight was given to the field sheets. 

Drafting of the Final Sheets. 

In many cases the points assumed as correct by the reconnaissance detach¬ 
ments were incorrect. In some of these cases the work had to be warped 
considerably in tracing. These caused some inaccuracies in details. If 
these inaccuracies seemed to be of importance, a party was sent into the field 
to correct the work, having been supplied with a tracing showing the correct 
positions of the known points taken from the projection rolls. 

In some cases it was not possible to connect in the office two quadri¬ 
laterals made under the supervision of different co-ordinating reconnais¬ 
sance officers. This was due to accumulative errors in one or both maps 
or to a strip of unmapped territory between the two sheets. In such 
cases, parties furnished with copies of the adjacent edges of the two quad¬ 
rilaterals were sent out to rectify the discrepancies or to map the inter¬ 
vening territory. This trouble would have been avoided if every road had 
been reconnoitered well beyond the boundaries of the allotted territory to 
some easily recognizable feature, as the instructions directed. 

On account of the approximate method used in contouring, the con¬ 
tours of the different reconnaissance detachments in many cases could not 
be connected. This is unavoidable in this class of work. 

The coast line as obtained from the large scale harbor charts was ac¬ 
cepted. Those parts of the coast line taken from the small scale chart of 
the island were changed so as to give weight to the coast as found by the 
reconnaissance detachments only in case these detachments were able to 
reach the coast by good roads. On account of the swamps which form a 
large part of the coast of the island, in many districts the detachments were 
unable to reach the coast. 

In the work submitted by several of the detachments there was a lack 
of uniformity in the symbols and abbreviations used, in the amount of 
detail attempted, and in the division of the information between the map 
and the notes. This was eliminated as far as possible in the final sheets 
by transferring information from the notes to the map and vice versa, and 
by using throughout the symbols adopted. 

As a rule, in making a map such as this, instructions concerning the 
amount of information and detail to be sought, and concerning symbols 
and abbreviations to be used, can not be too complete; and, if time does 
not prevent, a general knowledge of the country should be obtained before 
these instructions are issued. 


SEP 84 1908 





NUMBER 31 

OCCASIONAL PAPERS 

ENGINEER SCHOOL 

UNITED STATES ARMY 


LECTURES 

ON THE 

STATUTORY PROVISIONS 

RELATING TO 

GOVERNMENT CONTRACTS 

DELIVERED BEFORE 

THE ENGINEER SCHOOL, U. S. ARMY 

WASHINGTON BARRACKS, D. C. 

BY 

JOHN MASON BROWN, LL. B. 

MARCH, 190S 


WASHINGTON BARRACKS, D. C. 
PRESS OF THE ENGINEER SCHOOL 

1908 


set 











NUMBER 31 

OCCASIONAL PAPERS 

ENGINEER SCHOOL 

UNITED STATES ARMY 


LECTURES 

ON THE 

STATUTORY PROVISIONS 

RELATING TO 

GOVERNMENT CONTRACTS 

DELIVERED BEFORE 

THE ENGINEER SCHOOL, U. S. ARMY 

WASHINGTON BARRACKS, D. C. 

BY 

JOHN MASON BROWN, LL. B. 

MARCH, 1908 


WASHINGTON BARRACKS, D. C. 
PRESS OF THE ENGINEER SCHOOL 

1908 



























ft 


« 


• 

ft 

< t 
I t 
♦ « * 




















Lecture No. 1. 

Gentlemen of the Engineer School: 

Since it first became my lot and portion, some years ago, to give 
especial attention to the contracts or agreements to which the United 
States Government is a party, and to specialize in that branch of the law 
which deals with and regulates the way of making, the manner of 
enforcing, and the methods of accounting under, Government contracts, 
I must confess that the flight of time and my experience and observation 
have increased rather than lessened my belief and conviction that you 
young gentlemen are started on your professional careers with a handicap 
and at a disadvantage which to me seems decidedly unfair to you. 

At the Military Academy you have been taught at best but little of 
the Law of Contracts; of many and many of the principles and ramifica¬ 
tions of that complex subject you have been told nothing. Yet, upon your 
assignment to the Engineer Corps, almost the first of your really 
important duties will be in connection with the making of some contract, 
or the enforcement of an existing contract, or the interpretation of some 
contract stipulation, or the settlement of some account arising ex contractu. 

I should, perhaps, be more inclined to commiserate and sympathize 
with you, under these circumstances, were it not for the fact that my 
acquaintance among, and my contact with, the members of the Corps of 
Engineers has convinced me that the officers of that Corps are not men 
to be daunted by such a handicap; that, in the absence of specific instruc¬ 
tion on any point, they dig it out and master it by themselves; and that 
they are, in consequence, of that type and caliber which has always made 
them equal to any task assigned them. 

It is not without grave doubts and fears that I have accepted the invi¬ 
tation of Major Langfitt and that I have assumed the task of endeavoring 
to lighten your labors in the study of contract law; for no one knows 
better than do I that in the three lectures assigned to me we shall have 
time and opportunity to deal with only a few of the points which shall 
some day confront and puzzle you. 

At the very outset, gentlemen, I beg to impress upon you a full reali¬ 
zation of your responsibilities when you become contracting officers of 


2 


the Government. In that capacity you are the agents of the whole 
people—their trusted representatives. It shall be your sphere and duty 

to administer the law without fear or favor in any instance; and, such 

* 

being the case, I feel that no greater unfairness could be done to you than 
for me or for anyone else to inculcate into your minds an erroneous or 
prejudiced conception of any legal point on the alleged ground or excuse 
that it represents “the view point of the Government ” or u the view point 
of the contractor.” In any such distorted or prejudiced or selfish pres¬ 
entation or interpretation of the law, I earnestly urge you to take no 
stock and to place no credence. The law of the land, given to us by 
those gone before and as interpreted by our courts of last resort, is the 
law for the Government and for the contractor alike; and to you I say 
deliberately that the official of the Government who, in violation of the 
true principles of law, improperly mulcts a citizen or oppresses him or 
deals unfairly with him under the guise of enforcing a contract obligation, 
is as false to his trust and to his oath as is the citizen or contractor who, 
in violation of his obligation, furnishes defective material or otherwise 
swindles the Government. 

Of some of the stipulations contained in the forms of contracts now in 
use by the Engineer Department, and of some of the general principles of 
contract law, I shall have something to say later on. For the present, 
however, 1 shall invite your attention to some of the more important of 
the Federal statutory provisions relating to Government contracts and 
with which you should be thoroughly conversant. 

In my discussion of those statutes it has occurred to me that in these 
days of doubt and dispute a mere statement of a legal proposition carries 
little weight and conviction unless it be supported by recognized legal 
authority. For this reason I have endeavored to produce the authority 
for most of my statements, and, as I know that the court reports are not 
easily accessible to you, I have extensively quoted from those authorities 
in order that you might have their words rather than my conception or 
interpretation of them to justify your observance of the principles which 
they proclaim. 

Section 3709, Revised Statutes, provides : 

All purchases and contracts for supplies or services, in any of the Departments of 
the Government, except for personal services, shall be made by advertising a sufficient 
time previously for proposals respecting the same, when the public exigencies do not 
require the immediate delivery of the articles, or performance of the service. When 
immediate delivery or performance is required by the public exigency, the articles or 
service required may be procured by open purchase or contract, at the places and 
in the manner in which such articles are usually bought and sold, or such services 
engaged between indhiduals. And the advertisement for such proposals shall be 


3 


made by all the Executive Departments, including the Department of Labor, the 
United States Fish Commission, the Interstate Commerce Commission, the Smith¬ 
sonian Institution, the Government Printing Office, the government of the District 
of Columbia, and the superintendent of the State, War and Navy building, except 
for paper and materials for use of the Government Printing Office, and materials 
used in the work of the Bureau of Engraving and Printing, which shall continue to 
be advertised for and purchased as now provided by law, on the same days and 
shall each designate two o’clock post meridian of such days for the opening of all 
such proposals in each Department and other Government establishment in the city 
of Washington ; and the Secretary of the Treasury shall designate the day or days 
in each year for the opening of such proposals and give due notice thereof to the 
other Departments and Government establishments. Such proposals shall be opened 
in the usual way and schedules thereof duly prepared and, together with the state¬ 
ment of the proposed action of each Department and Government establishment 
thereon, shall be submitted to a board consisting of one of the Assistant Secretaries 
of the Treasury and Interior Departments and one of the Assistant Postmasters- 
General, who shall be designated by the heads of said Departments and the Post¬ 
master-General respectively, at a meeting to be called by the official of the Treasury 
Department; who shall be chairman thereof, and said board shall carefully examine 
and compare all the proposals so submitted and recommend the acceptance or rejec¬ 
tion of any or all of said proposals. And if any or all of such proposals shall be 
rejected, advertisements for proposals shall again be invited and proceeded with in 
the same manner. 

The provisions of the foregoing section have been made the subject of 
a vast number of decisions and rulings by the courts, the Attorney-General 
and the Comptroller of the Treasury. The aim, the object, and manifest 
spirit and intention of this section is to preclude fraud or favoritism, to 
open the doors of competition to all citizens, and to secure to the Gov¬ 
ernment the benefit of the lowest prices which bona fide competition may 
cause. 

In volume 21, Opinions of the Attorney-General, page 59, it was held 
that— 

The first two sentences of section 3709 apply to purchases anywhere in the United 
States by an officer or agent of the Government. The remaining three sentences 
apply only to purchases made in the city of Washington. 

The provisions of this section require advertisements for proposals in 
the case of all purchases and contracts for supplies or services in any of 
the departments of the Government, except for personal services, and 
except when the public exigencies require the immediate delivery of the 
article or performance of the service. The amendatory acts do not 
modify this requirement, but simply provide a mode for carrying it into 
effect. (22 Op. Atty. Gen., 1.) 

In the absence of any exigency of fact or of one determined by the 
officer in charge of public work or one that can be judicially inferred, the 


4 


provision of this section, requiring advertisement for supplies, is mandatory 
and contracts made in violation thereof are void. See 
Wentworth’s Case, 5 Ct. Cl., 302. 

Schneider vs. United States, 19 Ct. Cl., 547. 

Clark vs. United States, 95 U. S., 539. 

United States vs. Speed, 8 Wallace (U. S.), 77. 

In connection with the principle just stated and the cases cited in sup¬ 
port thereof, however, I should call your attention to one point: While 
the contract may be void by reason of the failure of the Government 
officer to advertise as required by this section, if the supplies or services 
have actually been received by the Government and it has derived the 
benefit thereof, it can not evade liability on the ground that no advertise¬ 
ment was made. The contract itself may be void by reason of the fact 
that the requirements of the statute have not been complied with; but if 
the Government has received the goods or services and derived the benefit 
therefrom, the law creates against it an implied contract and payment 
therefor may be recovered upon a quantum meruit . (See 12 Comp. Dec., 
366, et seq.) 

Following the principle laid down in the decisions which I have above 
cited and quoted, it has been held by the Comptroller of the Treasury 
that the provisions of section 3709 are mandatory and that the advertis¬ 
ing thereby required must be had regardless of the value of the articles 
desired. 

It has been held by the Comptroller of the Treasury, however, that the 
provisions of this section do not apply to the purchase of patented or copy¬ 
righted articles which, by reason of such patent or copyright, .are pro¬ 
curable from only one source and for the supply of which no compe¬ 
tition can be had. (See 2 Comp. Dec., 632.) 

In the Decisions of the Comptroller of the Treasury, volume 12, page 
507, et seq ., you will find a decision which has been made the subject of 
some adverse criticism upon the ground that said decision points the way 
to an evasion of the requirements of the statute. A closer analysis of it, 
however, will, in my opinion, merely demonstrate the ruling of the 
Comptroller to be that sound administration and manifest economy are 
not necessarily to be sacrificed for the sake of the strictest observance of 
this statute. The facts in that case were substantially these: The Interior 
Department made a practice of compiling a schedule of supplies needed 
for the ensuing fiscal year, purchasing the whole after due advertisement. 
Experience taught that certain field instruments for the Geological 
Survey could be procured much cheaper by buying them in the open 
market as the needs of the service required. The decision of the Comp- 


5 


trailer was asked as to whether such instruments should be included in 
the regular schedule and be advertised for, or whether they could be 
bought from time to time as they were needed. After stating (page 509) 
the purposes of section 3709 and of section 3744, the Comptroller uses 
this language on page 510 : 

It is, however, not always practicable or perhaps expedient for bureau officers to 
include in their annual estimates all supplies which they may require during the 
year, and, indeed, it is often impossible to foresee the entire needs of the year. That 
items have been omitted from the annual estimates and schedule, either through 
intention or inadvertence, does not exempt them from the requirements of sections 
3709 and 3744, supra. When there is time to advertise, such items should be adver¬ 
tised, either in newspapers or by circular letters, together with notices posted in 
public places, as either may be deemed the more expedient by the proper adminis¬ 
trative authorities. If the agreement relative to such items is not followed by imme¬ 
diate delivery or rendition it should be reduced to writing and formally executed. 

Under this decision, as you will see, it did become possible for the 
Director of the Geological Survey to intentionally omit such instruments 
from the annual schedule, to wait until there was actual and immediate 
need of one or more of them, to certify an emergency such as precluded 
advertisement, and to make an open-market purchase without the formal 
contract required by section 3744. In this particular case there resulted 
a saving to the Government, and, after the instruments were received by 
the Government, payment therefor might be made under the implied 
contract. 

The advertising required by this section of the statutes need not of 
necessity be through the medium of newspapers. It may be by circular 
letters or circulars sent to persons engaged in the particular business to be 
performed or in furnishing the supplies desired; or it may be done by 
means of posting handbills in proper localities; or by other similar means of 
giving publicity to the fact that such a contract or purchase is contem¬ 
plated and that competitive bids or proposals therefor are desired. In this 
connection I beg to refer you to 3 Comp. Dec., 175; ibid ., 470. In each 
of those cases will be found a discussion of the manner of advertising. 

In regard to the acquirements of the accounting officers of the Govern¬ 
ment relative to the observance of section 3709, and the certificates which 
they require when no advertisement is made, I would strongly urge upon 
you to procure a copy of Treasury Department Circular 52, 1907, and to 
thoroughly familiarize yourselves with its contents. 

The effect of section 3709 may be thus summarized: 

Advertisement must be made whether a legal contract is contemplated 
or not. The exceptions to the rule being: 

(a) When immediate delivery or performance is required ; 


6 


(b) When public exigency requires immediate commencement and 
there is no time for such advertising, even though there may be time for 
the execution of a formal contract; 

(c) When the subject of the proposed contract is neither service nor 
supplies: for instance, a lease for the rental of property; 

(d) When the articles are, by reason of being patented or copyrighted, 
procurable only from one source and no competition therefor can be had, 
and 

(e) When by reason of other existing conditions it is impracticable or 
impossible to advertise. 

Section 3710, Revised Statutes, provides: 

Whenever proposals for supplies have been solicited, the parties responding to> 
such solicitation shall be duly notified of the time and place of opening the bids, and 
be permitted to be present either in person or by attorney and a record of each bid 
shall then and there be made. 

By the provisions of this statute, it was the intention of Congress to 
insure to all competitive bidders the full observance and protection of 
their rights. The section just quoted is very clear and a contracting 
officer can not be too careful as to its enforcement. In connection there¬ 
with, however, I beg to call your attention to a few of the rulings which 
have been made thereon and which may aid you in understanding and 
determining the rights of bidders. 

In the absence of any statutory provision to the contrary, a bidder for 
a Government contract may withdraw his bid at any time before notice 
of acceptance thereof. (21 Op. Atty. Gen., 56.) 

In connection with the statement just made, permit me to digress for 
a moment to call your attention to one or two principles of law relating 
to the communication of an acceptance. 

The bidder may, of course, prescribe conditions as to the time by 
which, or the place at which, or the form in which, an acceptance of his 
offer must be made. In like manner he may prescribe the mode of 
communication of that acceptance. 

If no time is fixed for the acceptance, the offer must be accepted within 
a reasonable time. 

If the person making the offer designates a place at which he will 
receive an acceptance thereof, and the designation of such place is a con¬ 
dition of the proposal, an acceptance communicated to him elsewhere 
does not create a contract. This is true, even though the acceptance is 
actually received by the offerer. (See Eliason vs. Henshaw, 4 Wheaton 
(U. S.), 225.) 


7 


A bidder may likewise impose a condition as to the form in which an 
acceptance of his offer must be communicated to him—as, for instance, 
that it shall be in writing—and the acceptor must adopt that form, else 
the acceptance will be ineffectual. (See Pollock on Contracts, 25.) 

The bidder or proposer may also prescribe the manner in which the 
acceptance shall be communicated to him. If he does so, that mode must 
be adopted by the acceptor in order to create the contract. (Eliason vs. 
Henshaw, supra.) 

If no conditions are imposed by the bidder, the offer may be accepted 
in any reasonable and usual manner. In the absence of such conditions, 
as a rule, the acceptance may be communicated by the same means that 
brought the offer. 

If an acceptance is dispatched by proper means, it immediately becomes 
effective. A contract thereupon arises, which exists from the moment of 
dispatch (Taylor vs. Merchants Fire Ixis. Co., 9 Howard (U. S.), 390 ; 
Ferrier vs. Storer, 63 Iowa, 484; Stockam vs. Stockham, 32 Md., 196; 
Brauer vs. Shaw, 168 Mass., 198), and this is true, even though the letter 
of acceptance is delayed or lost in transmission. (Haas vs. Myers, 111 
Ill., 421 ; Washburn vs. Fletcher, 42 Wis., 152.) 

If, for instance, an offer is made by telegraph and the acceptor sends 
his answer by mail, the moment of acceptance is the moment of actual 
receipt thereof by the offerer, and not the moment of its dispatch. 

The bidder under an advertisement for sealed proposals has the right, 
previous to the opening of the bids, to modify his bid by telegram ; and 
the bid so modified, if accepted before withdrawal, will bind the bidder. 
(22 Op Atty. Gen., 45.) 

The designation of a certain hour for the opening of bids or proposals 
means that no such bids or proposals shall be opened before that hour. 
(21 Op. Atty. Gen., 56.) Contracting officers of the Government can 
not be too careful in this respect; regardless of the rights of contractors 
that their prices shall not be made known to their competitors, disregard 
of this principle has not infrequently resulted in the rejection of all bids 
and entailed upon the Government the expense of re-advertising, to say 
nothing of the inconvenience caused to all parties. 

A well-stated rule will be found in volume 21, Opinions of the Attorney- 
General, page 546, as follows (syllabus): 

A proposal received after the designated hour under circumstances which warrant 
the belief that it had been prepared and submitted in the light of the proposals sub¬ 
mitted by other bidders which had been already opened and made known, should 
not be received or entertained; but a proposal received under conditions which pre- 


8 


elude the possibility of such unfairness should not be rejected because it happens to 
be received by the board of award a few minutes after 2 o’clock p. m. 

Section 3717, Revised Statutes, provides: 

Whenever the Secretary of War invites proposals for any works, or for any 
material or labor for any works, there shall be separate proposals and separate con¬ 
tracts for each work, and also for each class of material or labor for each work. 

While the provisions of the act just quoted represent the general rule 
as to contracts with which you gentlemen will have to deal, there is one 
important exception to which your attention is invited. 

In the River and Harbor Act of September 19, 1890 (26 Stat. L., 426), 
section 2, you will find the following provision : 

That nothing contained in section thirty-seven hundred and seventeen of the 
Revised Statutes of the United States, nor in section three of the river and harbor 
act of August eleventh, eighteen hundred and eighty-eight, shall be so construed as 
to prohibit or prevent the cumulation of two or more works of river and harbor 
improvement in the same proposal and contract, where such works are situated in 
the same region and of the same kind or character. 

While the act just quoted permits the incorporation of two or more 
works of river and harbor improvement in the same contract, I advise you 
against doing so if you can possibly avoid it, and I feel that your attention 
should be called to one point. If two or more works are so provided for 
in a contract and each is to be done by the same stipulated date, I should 
advise you not to use a form of contract providing for liquidated damages. 
While it is true that a contract can be drawn so as to properly and validly 
provide for liquidated damages under such a state of facts, it is not easy 
to do so, and it is quite likely, if we may judge by past experience, that 
the contract when finally prepared upon a Government form will provide 
that all of the work therein provided for shall be done by a certain date 
and that failure to so complete it shall result in the assessment and deduc¬ 
tion of liquidated damages in a certain amount for each and every day of 
delay. In other words, unless the contract is drawn with great care and 
with a most thorough regard for legal technicalities in this respect, you 
will have a contract providing for the doing of more than one thing and 
providing the same measure of damages in case of a partial breach as 
would be allowed or collectable for a total breach. In this connection 
and on this phase of the law I invite your attention to volume 8, Decisions 
of the Comptroller of the Treasury, page 487, and also to volume 11 of 
the same decisions, page 513, in each of which cases you will find this 
class of contract and the legal principles involved quite fully discussed. 


9 


By the act of April 10, 1878 (20 Stat. L., 36), as amended by the act 
of March 3, 1883 (22 Stat. L., 487), it is provided : 

That the Secretary of War is hereby authorized to prescribe rules and regulations 
to be observed in the preparation and submission and opening of bids for contracts 
under the War Department. And he may require every bid to be accompanied by 
a written guarantee, signed by one or more responsible persons, to the effect that he 
or they undertake that the bidder, if his bid is accepted, will, at such time as may 
be prescribed by the Secretary of War or the officer authorized to make a con¬ 
tract in the premises, give bond, with good and sufficient sureties, to furnish the 
supplies proposed or to perform the service required. If after the acceptance of a bid 
and a notification thereof to the bidder he fails within the time prescribed by the 
Secretary of War or other duly authorized officer to enter into a contract and furnish 
a bond with good and sufficient securities for the proper fulfillment of its terms, the 
Secretary or other authorized officer shall proceed to contract with some other person 
to furnish the supplies or perform the service required, and shall forthwith cause the 
difference between the amount specified by the bidder in default in the proposal and 
the amount for which he may have contracted with another party to furnish the 
supplies or perform the service for the whole period of the proposal to be charged 
up against the bidder and his guarantor or guarantors, and the sum may be imme¬ 
diately recovered by the United States for the use of the War Department in any 
action of debt against either or all of such persons. 

Your attention is invited to the provision in this act to the effect that, 
if a person after the acceptance of his bid fails within the time prescribed 
by the Secretary of War to enter into a formal contract therefor and to 
furnish bond with good and sufficient security for the fulfillment of its 
terms, the Secretary of War or other authorized officer shall proceed to con¬ 
tract with some other person. The provisions of the act just quoted apply, 
so far as I know, to all of the classes of contracts with which it is likely 
that you will have occasion to deal, except one class to which I shall 
presently refer. Under this general rule, the second person thus con¬ 
tracted with need not be one of the competitive bidders or the next lowest 
bidder, unless the Secretary of War should by his rules and regulations 
on the subject so prescribe. Furthermore, under this general rule, I 
might state that upon the acceptance of the bid of one of the bidders, the 
rights of the other bidders cease in the premises and they have no inherent 
or continuing right to insist that in case the successful bidder fails to 
enter into a contract or give the requisite surety the work shall be awarded 
to them or to any of them. 

Your attention, however, is invited to the following provision con¬ 
tained in section 3 of the River and Harbor Act of August 11, 1888 
(25 Stat. L., 423): 

That it shall be the duty of the Secretary of War to apply the money herein and 
hereafter appropriated for improvements of rivers and harbors, other than surveys, 


10 


estimates and gaugings, in carrying on the various works, by contract, or otherwise, 
as may be most economical and advantageous to the Government. Where said 
works are done by contract, such contract shall be made after sufficient public adver¬ 
tisement for proposals, in such' manner and form as the Secretary of War shall pre¬ 
scribe; and such contracts shall be made with the lowest responsible bidders, accom¬ 
panied by such securities as the Secretary of War shall require, conditioned for the 
faithful prosecution and completion of the work according to such contract. 

Note, if you please, that this latter act requires the contract to be let to 
the lowest responsible bidder. In these last three words lies the distinction 
and difference between this provision of the River and Harbor Act just 
quoted and the act of April 10, 1878, which I quoted a few moments ago. 

Under the River and Harbor Act, supra , suppose A , B and C are bidders 
under sealed proposals for work. The bid of A is accepted, but he sub¬ 
sequently fails to enter into the required formal contract or to give the 
prescribed bond or security for its performance. The officers of the 
Government have no legal right to contract for the work in question 
with “some other person.” They must, under this law, award the con¬ 
tract to the next lowest bidder who qualifies by giving the required bond 
or security and who possesses the qualifications as to responsibility con¬ 
templated by the statute. The measure of damage in such a case will be 
the difference between the bid of A and the bid of the bidder to whom 
the contract for such work is let by reason of A’s default. 

At this point I feel that I should state to you that identically this case 
arose recently in connection with the award of a contract by the Secretary 
of War for jetty construction at Cold Spring Inlet, New Jersey. A , B 
and C were bidders. The bids or proposals of B and C were accom¬ 
panied by the required guaranty, that if awarded the contract, they would 
enter into formal contract therefor and perform it according to the specifi¬ 
cations. The bid of A was not accompanied by the guaranty required 
and was, therefore, in my opinion, vitally defective and should have been 
thrown out for this reason. The War Department, however, accepted 
the bid of A and called upon him to enter into formal contract and to 
give the required bond in the sum of $110,000.00 for the faithful per¬ 
formance thereof. A was unable to give the required bond and finally so 
notified the Engineer Officer. X , who was not a bidder and who had had 
the benefit of ascertaining the prices contained in the sealed proposals, 
thereupon came forward and offered to do the work at the same price 
which had been named in the bid of A , and he demonstrated his ability to 
give the required bond for. the performance of his undertaking. On 
behalf of B , the next lowest bidder, and who had qualified by giving the 
requisite guaranty, I filed a protest against the award of this contract to 
X on the theory above outlined. My protest, however, was overruled by 


11 


the Judge-Advocate-General and upon his recommendation the Assistant 
Secretary of War directed the approval of the contract with X. With 
the utmost deference to both the learned Judge-Advocate-General and 
the Assistant Secretary of War, I still adhere to the correctness of the 
position taken by me in the matter and, by reason thereof, have since 
instituted in the local courts an injunction suit to enjoin the prosecution 
of said contract and the use of public moneys for payment of work done 
thereunder. This suit is still pending and regardless of the decision in 
the lower courts will doubtless be appealed by reason of the important 
principle which it involves. In view, however, of the great doubt which 
exists as to the legality of awarding such a contract to a person other than 
a bidder and, in view of the position taken by the War Department in 
the case I have just mentioned, I would suggest that if such a case arise 
in your own experience, the question of award thereunder be referred by 
you to the War Department and the responsibility for such award thereby 
shifted to the shoulders of those higher in authority. 

While we are discussing the question of “lowest responsible bidder,” I 
should perhaps state to you that, under this River and Harbor Act, the 
Secretary of War and the officers acting for and under him are not legally 
bound to award the contract to the lowest bidder. The statute says that 
the award shall be made to the “lowest responsible bidder” and the law 
is well settled that the matter of responsibility, both financially, profes¬ 
sionally and morally, of a competitive bidder is a matter solely and 
exclusively within the discretion of the administrative officers and that the 
exercise of such discretion by them, unless it be tainted by fraud or by 
such a palpable abuse as to warrant on the face of the papers the conclu¬ 
sion that no discretion whatever has been exercised, will not be reviewed 
or controlled by the courts. 

The question of the responsibility of a bidder will frequently arise in 
the cases which you will handle, and for your guidance and information 
I will on this point ask your consideration of only one other case. 

In the caset)f Douglas vs. Commonwealth, 108 Pa. St., 559, et seq. y 
the facts were substantially this : 

A contractor had had a contract, but, in the performance thereof, had 
not dealt in good faith and had in fact defrauded the contractee. A year 
or so later, under a statute which required the contract to be let to the 
lowest responsible bidder, this same man was not only the lowest respon¬ 
sible bidder, but complied in all respects with the requirements relative 
to the giving of his bond, the amount of the security and the like. The 
public officials rejected his bid and declined to consider the same, assign¬ 
ing as their reason therefor that he had once defrauded them, that he was 


12 


likely to do it again, and that he was not, therefore, in their judgment, a 
responsible bidder. The contractor thereupon brought suit to compel 
them to award him the contract; but the court held that the matter 
of his responsibility was one solely within the control of the public 
officials and that their decision in the matter would not be disturbed or 
reviewed by the courts. The petition of the contractor was, accordingly, 
dismissed. The principle laid down in this case should undoubtedly be 
applied to many of those who contract with the Government and whose 
record for non-performance or default or bad faith is notoriously well 
known to the contracting officers of the Government. 

Section 3732, Revised Statutes, provides: 

No contract or purchase on behalf of the United States shall be made, unless the 
same is authorized by law or is under an appropriation adequate to its fulfillment, 
except in the War and Navy Departments, for clothing, subsistence, forage, fuel, 
quarters or transportation, which however shall not exceed the necessities of the cur¬ 
rent year. 

In order that a contract should be authorized by law, within the con¬ 
templation of this statute, it must appear that express authority was given 
to make such contract, or, that it was necessarily to be inferred from some 
duty imposed upon, or from some authority given to, the person assuming 
to contract on behalf of the United States. (15 Op. Atty. Gen., 235.) 

In Chase vs. United States, 44 Federal Reporter, 732, it was held that 
under this statute the executive officers of the Government have no power 
to bind it by contract unless by virtue of statutory provision or by clear 
implication there exists their authority to do so. In the case just men¬ 
tioned it was held that the annual appropriations which are made by 
Congress to defray the expenses of the Executive Departments do not 
authorize the heads of those departments to bind the Government by 
contract beyond the time or period for which such appropriations are 
made applicable and are available. 

If, however, an officer is given authority to do a piece of work without 
any limitation of cost being imposed, the contract made by him is bind¬ 
ing upon the Government whether an appropriation is made for that 
purpose or not. (Shipman vs. United States, 18 Ct. Cl., 138.) 

In volume 21 of the Opinions of the Attorney-General, page 495, will 
be found an interesting case involving the application and scope of this 
statute. The gist of the opinion may be thus stated : 

Where Congress authorized and directed the Secretary of War to contract for the 
purchase of a certain article without advertising therefor, and in the same act appro¬ 
priated a specific sum for such purpose, and by the terms of said act no expressed 
or implied authority was given to him to bind the Government beyond the amount 


13 


so appropriated, the Secretary, by making the contract for the full amount which 
had been appropriated, exhausted his authority and could not make a supplemental 
or further contract binding the Government for further expenditure. 

In connection with this statutory prohibition, however, let me call your 
attention briefly to two cases which may serve to clearify your minds as 
to the attitude and position of the contractor when a contract violative of 
its provisions has been entered into by an officer or agent of the Govern¬ 
ment. 

In the case of Dougherty vs. United States, 18 Ct. Cl., 496, it was 
held that— 

Persons contracting with the Government for partial service under a general 
appropriation are not bound to know the condition of the appropriation or contract 
books of the department. 

In the cases of Myerle vs. United States, 33 Ct. Cl., 1 and 126, it was 
held that where service is performed under a general appropriation the 
contractor is not bound to know the condition of the appropriation 
account at the Treasury. Also, that a contractor who is building boats 
under a general appropriation is not chargeable with knowledge of the 
fund. 

In Semmes vs. United States, 26 Ct. Cl., 119, the principle is thus 
stated : 

These provisions (of section 3732, above quoted), undoubtedly apply to express 
contracts and prohibit the making of such contracts except as therein provided. They 
have no application to that class of implied contracts which arise from the acts of 
public officers in the performance of their duties in carrying on the business of the 
Government intrusted to them by law in their respective spheres. 

In connection with this section of the Revised Statutes, I will recom¬ 
mend that you carefully study the decisions of the Comptroller of the 
Treasury reported in 9 Comp. Dec., 423, et seq.\ 11 Comp. Dec., 564, 
et seq ., and 9 Comp. Dec., 638. These cases, by reason of the authori¬ 
ties cited and quoted from, and by reason of the fullness with which the 
facts are stated therein, will prove of value in aiding you to better under¬ 
stand the scope and effect of section 3732. 

Before passing from this section of the statutes, I feel that as the case 
in 9 Comp. Dec., 638, cited a moment ago, involves a question with 
which you may be not infrequently confronted it may be well for me to 
briefly state it to you. The facts were these: Congress had authorized 
the improvement of Passaic River, the act providing that a contract or 
contracts might be entered into therefor, the work to be paid for as appro¬ 
priations were from time to tim,e made for such purpose, and the cost 
thereof not to exceed in the aggregate a certain fixed sum. Bids for the 


14 


Work were twice asked for and in each case the aggregate price thereof 
would have proven in excess of the limit which Congress has fixed. The 
Secretary of War thereupon asked the decision of the Comptroller as to 
whether any of the money already appropriated could properly be used in 
executing a portion of the work. 

Without stopping to discuss the reasoning of the Comptroller in this 
case or the cases which he cites, let it suffice that I quote the syllabus of 
his decision : 

Appropriations having been made for improving Passaic River, New Jersey, 
which fixed a limit of the cost thereof, and it having been ascertained that the con¬ 
templated work can not be completed within the limit of cost fixed therefor, there is- 
no authority to enter into a contract for the partial completion of the work, or to< 
expend the money appropriated in doing a portion of the work. 

Section 3733, Revised Statutes, provides: 

No contract shall be entered into for the erection, repair, or furnishing of any 
public building, or for any public improvement which shall bind the Government 
to pay a larger sum of money than the amount in the Treasury appropriated for the 
specific purpose. 

As stated by the Attorney-General (21 Op. Atty. Gen., 244, et seq.) : 

The object of these provisions of the statute was, it is manifest, to prevent executive 
officers from involving the Government in expenditures beyond those contemplated 
and authorized by the lawmaking power. 

In considering this same section, it was said by the Attorney-General 
(15 Op. Atty. Gen., 235) (syllabus) : 

Authority to contract for the completion of an entire structure, the plan of which 
has been determined on, can not be inferred from the mere fact that an appropria¬ 
tion of a certain sum to be expended on the structure has been made. Hence a con¬ 
tract, though it might be good to the extent of such appropriation, could not be made 
to affix itself to future appropriations and control their expenditure. A contract of 
this character would be in violation of the spirit of this section, if not of its express 
terms. 

In the case of Shipman vs. United States, 18 Ct. CL, 146, the court 
said : 

Where Congress passes an act authorizing officers to construct a building or to do 
other specified work, without restriction as to cost, and then makes an appropriation 
inadequate to do the whole work, or makes none at all * * * the authority to 

cause the work to be done and to make contracts therefor is complete and unrestricted. 

All work, therefore, done under the direction of the officers thus charged with 
the execution of the law creates a liability on the part of the Government to pay for 
it, and if a written contract be made and work be done in excess of the contract 
specifications or entirely outside of or in addition to the written contract, and such 
work inures to the benefit of the United States in the execution of the law, or is 


15 

accepted by the proper public officers, a promise to pay its reasonable value is 
implied and enforced. 

Probably the latest decision of the Comptroller of the Treasury bear¬ 
ing upon the effect of the statute in question will be found in 13 Comp. 
D ec., 478. As our time is limited, I shall not go into the facts of the 
case, but shall content myself with quoting the syllabus thereof, as follows : 

A contract may be entered into for the full completion of an object authorized by 
law within the limit of cost fixed for it, even though such limit is greater than the 
amount appropriated for the object, provided payment therefor is limited to the 
amount in the Treasury appropriated therefor, exclusive of other obligations or 
expenditures, and is made subject to future appropriations. 

To the decision just cited I would invite your thoughtful considera¬ 
tion, not only by reason of the fact that it illustrates one phase of the 
statute which we are discussing, but by reason of the fact that it also 
involves a consideration of the act of June 30, 1906 (34 Stat. L., 764), 
with which you should be familiar, section 9 of which provides as follows : 

No act of Congress hereafter passed shall be construed to make an appropriation 
out of the Treasury of the United States, or to authorize the execution of a contract 
involving the payment of money in excess of appropriations made by law, unless 
such act shall in specific terms declare an appropriation to be made or that a con¬ 
tract may be executed. 

In connection with this last quoted act I would also recommend that 
you read carefully the decision of the Comptroller of the Treasury in 13 
Comp. Dec., 729, et seq.\ idem., 219; idem., 700. 

I do not deem it necessary that I should do more than quote to you 
the provisions of section 5503, Revised Statutes, as I feel confident that, 
by reason of its terms and import, it will commend itself to your con¬ 
sideration and observance. It is as follows: 

Every officer of the Government who knowingly contracts for the erection, repair, 
or furnishing of any public building, or for any public improvement, to pay a larger 
amount than the specific sum appropriated for such purpose, shall be punished by 
imprisonment not less than six months nor more than two years, and shall pay a fine 
of two thousand dollars. 

In connection with the above, I would suggest that you will find the 
following decisions of the Comptroller profitable reading : 4 Comp. Dec., 
314; 3 Comp. Dec., 353, et seq.; idem., 437, et seq. 

Nor shall I consume time by more than a quotation of section 3735, 
Revised Statutes, as I am anxious to pass on to other laws which are less 
plain in their requirements and which will more frequently come before 
you for consideration: 

It shall not be lawful for any of the Executive Departments to make contracts for 
stationery or other supplies for a longer term than one year from the time the con¬ 
tract is made. 









































* 























































♦ 































Lecture No. 2. 

By section 3737, Revised Statutes, it is provided : 

No contract or order, or any interest therein, shall be transferred by the party to 
whom such contract or order is given to any other party, and any such transfer shall 
cause the annulment of the contract or order transferred, so far as the United States 
are concerned. All rights of action, however, for any breach of such contract by the 
contracting parties, are reserved to the United States. 

Construing this law, the Attorney-General (19 Op. Atty. Gen., 186) 
said : 

One of the purposes of the law was to secure integrity in bidding for contracts, by 
preventing a bidder or contractor from making several bids, one by himself and 
others by his friends and employees, to be afterwards consummated by assignments 
of the contract by them to the real bidder for whom they all acted. 

Another was to prevent those who bid for and obtain contracts for mere specula¬ 
tion and who have neither the intention nor ability to perform them, from selling the 
contracts at a profit to bona fide bidders or contractors. 

In Francis’s Case, 11 Ct. CL, 638, the court held : 

The statute was passed * * * to secure Government contracts to bona fide 

contractors who intend to perform the duties as well as to assume the liabilities 
thereof and to prevent parties from acquiring mere speculative interests, which are 
demoralizing, and lead to irregularities and fraud. 

The Attorney-General (15 Op. Atty. Gen., 226) also said : 

Contracts are to be performed by those who make them, and are not to be the sub¬ 
jects of traffic or transfer. It is, therefore, necessary that they should be made with 
those who, from their capacity, are competent to render the service to be performed, 
or from their business are able to furnish from its resources that which they contract 
to supply. 

While the statute now under consideration authorizes the annulment 
of a contract in case of assignment or transfer thereof, and reserves such 
rights only to the Government, you must bear in mind the fact that it is 
not obligatory to annul a contract by reason of such assignment or trans¬ 
fer. As was said by the court in Dulaney vs. Scudder, 94 Fed. Rep., 6 : 

Under this section the Government is free to treat a transferred contract as annulled 
or to recognize the assignment. 

The same view has been taken by the Attorney-General (16 Op. Atty. 
Gen., 277), who said : 

The statute in question is, however,‘intended only for the benefit of the United 


18 


States; and while it is said that such transfer shall cause the annulment of the con¬ 
tract or order transferred, it is intended only that it shall do so in case the United 
States declines to recognize such transfer. While, therefore, the United States may 
avail itself of such transfer to annul the contract it is not compelled to do so. 

In United States vs. Farley, 91 Fed. Rep., 471, the court held : 

The prohibition found in section 3737 is intended to prevent such assignments of 
public contracts as would relieve the original contractor from the obligations of the 
contract with the Government. 

In Bowe vs. United States, 42 F ed. Rep., 761, another phase of the 
question was determined by the court in the following language: 

Where the Government treats a person as a contractor, and responsible as such, 
all through the work, and until its completion and accepts the entire work as satis¬ 
factory and makes a final settlement with him, it may not then make the objection 
that he was not a lawful contractor on the ground of a transfer by the contractor to 
one of his sureties of an interest in the contract. 

Of the powers of officers under this section, let me quote from the 
Attorney-General (19 Op. Atty. Gen., 186), as follows : 

There is no authority given by the statute, nor to be inferred from it, that any 
officer of the United States can, in advance, either approve or recognize any proposed 
assignment thus forbidden. 

It is difficult to state in exact and concise terms what constitutes an 
assignment or transfer within the purview of this statute. The following 
cases, however, may aid you in reaching a conclusion on that point. 

Following the decision of the United States Supreme Court in the case 
of Hobbs vs. McLean (117 U. S., 567), it was held, in the case of North 
Pacific Lumber Company vs. Spore (75 Pac. Rep., 890), that: 

The fact that a partnership is entered into by contractors for United States con¬ 
tracts does not necessarily violate this section. 

In St. Paul, etc., Railway Company vs. United States (112 U. S., 733, 
affirming the Court of Claims in l8 Ct. CL, 406), it wa^ said: 

The transfer of a contract so as to enable the assignee to perform the service and 
claim the compensation stipulated for is forbidden by this section and the United 
States can not be held liable by the assignee of a contract for carrying mail. 

The administrative officers have frequently been confronted with and 
embarrassed by the provisions of this statute, and, as it is of such impor¬ 
tance that you should clearly understand its effect, I shall ask your con¬ 
sideration of the following decisions of the Comptroller of the Treasury 
wherein its application has been involved. 

In 9 Comp. Dec., 43, et seq., was a case where a firm had a contract 
for the construction of a dry dock at the Navy-Yard, Boston. For finan- 


t 


19 


cial reasons the contractors were unable to make satisfactory progress and 
complete the work. T he surety company on the bond of the contracts 
then proposed to go ahead, under their right to subrogation, and complete 
the work, provided that they could be assured of receiving all future pay¬ 
ments under the contract, including former retained percentages withheld 
from the contractors. 1 o this the contractors gave their assent and the 
surety then suggested the execution of a formal contract to that effect to 
be entered into between the Government, the contractors, and the surety. 

Upon the legality of the proposed plan the decision of the Comptroller 
was asked. Let me point out to you, however, that the syllabus of his 
decision is very misleading and does not in fact correctly convey the true 
point in the case. From the syllabus we may very readily gather the 
impression that the whole plan suggested met with the approval of the 
Comptroller when in fact the plan was approved by him only to a certain 
extent and a distinct and definite limitation thereon imposed by him. 

In the body of the decision, he said : 

If the contractors in the original contract have defaulted in the performance of 
their contract, and are unable to complete it and the same is not declared forfeited 
by them, and the surety on the bond of said contractors should assume the comple¬ 
tion of the contract for their own protection with the consent of the contractors and 
the Government, and they should complete the same, they would thereby become 
subrogated to the rights of the United States, and would be entitled to be paid from 
any money due, or to become due, under the terms and conditions of the contract 
such amounts as may be necessary to reimburse them for their outlays in the comple¬ 
tion of the contract, but not to exceed, including payments heretofore made to the 
contractors what the Government should pay for the entire work called for by said 
contractors after all deductions have been made to which the United States may be 
entitled under the terms and conditions of said contract. (See Prairie State Bank 
vs. United States, 164 U. S., 227.) 

Within the rules and limitations above stated as to the rights of all the parties I 
am of opinion that you would be authorized to enter into a supplemental contract 
with the original contractors and the surety company, wherein, if it is desired to do 
so, the amount which the surety company shall receive by way of said reimburse¬ 
ments in case it should assume and complete said contract, may be fixed, liquidated, 
and agreed upon by all the parties, and that payments for said reimbursements may 
be made direct to the surety company, subject to all the terms and conditions in the 
original contract, if in your judgment the making of such supplemental contract 
would be for the interests of the Government; but in view of sections 3737 and 3477 
of the Revised Statutes, I am of opinion that you would not be authorized to extend 
said supplemental contract so as to bind the Government to pay to the surety com¬ 
pany from any amount due, or that may be due, under the terms of the original 
contract, to exceed what may be necessary to reimburse them under the rules and 
limitations already stated; but if any sums that may be due under the terms of said 
contract, in case the surety company should assume and complete the same, after all 
deductions to which the Government may be entitled are made from the contract 


20 


price which the Government agreed to pay for the entire work, and after the surety 
company has been reimbursed for their outlays in the completion of the contract, if 
there is sufficient, after making said deductions to which the Government may be 
entitled, to reimburse them, then the balance still remaining due under the contract, 
if any, should be paid to the original contractors. 

In 9 Comp. Dec., 391, it was represented by the Postmaster-General 
that there existed a contract with the International Navigation Company, 
of Jersey City, N. J., for the carrying of mail matter. During the con¬ 
tinued existence of said' contract the board of directors of said company 
resolved “that it is hereby deemed advisable to change the name of the 
company to ‘International Mercantile Marine Company.’” As it was 
stated that the change in name and in a few of the by-laws were the only 
ones made, and that otherwise the corporation as originally organized 
continued still in existence, it was held by the Comptroller that such 
change in name did not constitute an assignment of section 3737 and that 
payments under the contract could thereafter be made to the company in 
its new name. 

In 9 Comp. Dec., 611, you will find another illustration of the neces¬ 
sity for reading the decision for yourself and for not blindly accepting the 
syllabus as to the gist of the decision. 

The syllabus in this case is as follows: 

Sections 3477 and 3737, Revised Statutes, which prohibit the transfer or assign¬ 
ment of claims against, or contracts with, the United States, have no application to 
the payment of rent by the Government to a lessor who is the agent of the owner of 
the leased premises. 

While the syllabus is correct as far as it goes, it does not, in my opinion, 
touch the very point which is of such material importance to the officer 
who makes the disbursement. 

The owner of certain rented property gave his real estate agent a formal 
power of attorney to collect the rental due thereon from the United States. 

Note, if you please, what the Comptroller actually said in his decision 
(the italics are mine): 

Sections 3477 and 3737 of the Revised Statutes forbid the transfer or assignment 
of all manner of claims against or contracts with the United States, and hence all pay¬ 
ments under the lease with Brown, the owner of the premises, must be made to him 
and not to his attorney or agent. There is no objection, however, to your taking a 
receipt from his attorney as a proper voucher in your account with the Treasury, 
provided, that payment is made by a check drawn on the Treasurer of the United 
States or a designated depository, payable to the order of the principal , in the manner 
prescribed in the circular herewith inclosed (Department Circular No. 52, of April 
29, 1903). 


In 10 Comp. Dec., 159, et seq ., the case was substantially this : Shreve 


21 


Lo. had a contract for certain work at the Naval Academy; they 
became insolvent and the Baltimore Circuit Court appointed receivers to 
administer and wind up the insolvent estate. The receivers, regarding 
the contract in question as an asset of the insolvent contractors, desired to 
transfer and assign said contract to the River and Harbor Improvement 
Company. 1 he contract was not annulled and the sureties on the bond 
of the original contractors were willing to remain bound as sureties on 
the bond of the River and Harbor Improvement Company, if such con¬ 
tract were assigned and transferred to this latter company as above men¬ 
tioned. The question necessarily arose as to whether or not such a 
transfer or assignment of the contract by the receivers would be in violation 
of section 3737. 

1 he Comptroller held that it was not violative of or inconsistent with 
section 3737, and his reasoning therefore is undoubtedly correct. In the 
body of his opinion, pages 163 and 164, he uses this language : 

T he failure of the contractors would probably have authorized the Government to 
annul the contract, but such failure does not of itself annul the contract, and so long 
as the Government does not exercise its right to annul the contract, it is held by the 
receivers subject to the order of the court for the benefit of those entitled thereto. If 
the receivers thought it to the advantage of the estate they represent they would have 
the right, under the authority and direction of the court, to perform and complete 
said contract according to the terms thereof, using such means and agencies and 
making such arrangements or contracts with other parties as they and the court might 
deem proper and for the best interest of the parties they represent, or if they think it 
for the interest of the estate to do so, they can, under the authority of the court, sell 
and assign the contract as an asset of the estate, and in such case the title thus 
acquired by the purchaser would be by operation of law and not inconsistent with 
said section 3737, and if the receivers satisfy you of their right to sell said contract 
under their general powers as receivers under the laws of the State where appointed 
or under the order of the court appointing the receivers, and that said court has 
power and authority to make such order, and the receivers should accordingly sell 
said contract, you would be authorized to recognize the title of the purchaser to the 
contract thus acquired together with all the rights of the original contractors therein. 

The sale of the contract by the receivers under the authority and in the manner 
above mentioned would be by operation of law—that is, the practical working and 
effect of the law—as much so as the passing of the contract to the receivers appointed 
by the court. The receivers derive their authority from the act of the court and not 
from the act of Shreve & Company, and the effect of their appointment is to put the 
contract from that time into their custody as officers of the court, for the benefit of 
the parties ultimately proved to be entitled. Their possession is the possession of 
the court, and the court has power to order a sale of property, including a contract 
or choses in action, in the hands of its receivers whenever it considers such course 
necessary for the best interests of all parties, and in such a case the law passes the 
title to the property sold to the purchaser, and if such purchaser performs and com¬ 
pletes the contract payments should be made to him according to the terms and con- 


22 


ditions of the contract m all respects the same as payments would have been made to 
the original contractors had they performed and completed the contract according to 
the terms thereof and no receivers had been appointed. 

In another case 110 Comp. Dec., 168, et seq.) the facts were substan¬ 
tially these: 

The Sturgis Water Company was in the hands of a receiver duly 
appointed by court. This receiver entered into a contract on behalf of 
said Water Company to furnish the Quartermaster's Department at Fort 
Meade with water. Thereafter, by order of court, the Sturgis Water 
Company, its plant, and all franchises, rental and rights arising through 
contracts, were sold to satisfy a judgment and were bought in by Mr. 
Carpenter, who continued to furnish water to the Government under the 
original contract of the Sturgis Water Company. The question asked of 
the Comptroller was, whether or not the provisions of section 3737 were 
thus violated. 

In his decision in this case, on page 170, he said : 

The water called for in the contract could only be furnished by the plant formerly 
owned by the Sturgis Water Company, and the transfer of said plant operated as a 
transfer of the title to the water rights covered by said contract, and I do not think 
there is anything in sections 3737 and 3477 of the Revised Statutes that prevents you 
from recognizing the party who holds the legal title to the water furnished under said 
contract and paying such holder of the legal title for the water furnished by him 
under its terms. This is the only way in which you can secure performance of the 
contract in accordance with its terms, and I am of opinion that the transfer of the 
contract in question does not come within the scope and effect of either section 3737 
or 3477 of the Revised Statutes. (See case of Freedman’s Saving Co. vs. Shepherd, 
supra.) At least, there is nothing in either one of these sections to prevent the 
Government from recognizing a transfer so made ; and as it has done so, and accepted 
the water so delivered, there seems to be no reason why payment should not be made 
to Cephas W. Carpenter, the holder of the legal title to the water furnished under 
the contract. (2 Comp. Dec., 50.) 

Many other decisions and cases can be found involving the interpreta¬ 
tion and effect of section 3737. As our time is limited, I shall be unable 
to go into a discussion of any more cases on this point, but I would com¬ 
mend to your carefully reading the following decisions of the Comptroller, 
to-wit: 10 Comp. Dec., 201; 10 Comp. Dec., 354, and 4 Comp. Dec., 43. 

I would only call your attention to the fact that the case reported in 10 
Comp. Dec., 353, establishes the ruling that the provisions of 3737, 
Revised Statutes, are applicable not only to express contracts but to 
implied contracts as well. 

I might further add that, within the past week, I had the following 
case : The contractor, for certain electrical apparatus at the Government 


23 


Hospital for the Insane, was about two years behind in his work and had 
practically refused to proceed in its prosecution except in such manner 
and at such time as might suit his convenience and wishes. The surety 
company, for whom I was attorney, tiring of such bad faith and uncon¬ 
scionable action on the part of the contractor, filed an intervening petition 
in a suit which had been brought against the contractor by a creditor and 
asked the appointment by the Court in this city of a receiver to take charge 
of the plant, materials and apparatus of said contractor, and to prosecute 
to immediate completion the contract in question. The receiver is now 
engaged in the prosecution of that work and, being the agent of the court, 
his authority is by operation of law and, consequently, in no sense a 
violation of section 3737. 

By the act of August 13, 1894 (28 Stat. L., 278), it was provided : 

That hereafter any person or persons entering into a formal contract with the 
United States for the construction of any public building, or the prosecution and com¬ 
pletion of any public work or for repairs upon any public building or public work, 
shall be required before commencing such work to execute the usual penal bond, with 
good and sufficient sureties, with the additional obligations that such contractor or 
contractors shall promptly make payments to all persons supplying him or them labor 
and materials in the prosecution of the work provided for in such contract; and any 
person or persons making application therefor, and furnishing affidavit to the Depart¬ 
ment under the direction of which said work is being or has been prosecuted, that 
labor or materials for the prosecution of such work has been supplied by him or them 
and payment for which has not been made, shall be furnished with a certified copy 
of said contract and bond upon which said person or persons supplying such labor 
and materials shall have a right of action and shall be authorized to bring suit in the 
name of the United States for his or their use and benefit against said contractor and 
sureties and to prosecute the same to final judgment and execution : Provided, That 
such action and its prosecutions shall involve the United States in no expense. 

As stated by the Attorney-General (23 Op. Atty. Gen., 174): 

The object of the act was to afford a better method for enforcing against the con¬ 
tractor the claims of laborers and materialmen who had done work or furnished 
material upon property actually belonging to the United States, such as public 
buildings, which could only be erected upon land to which the United States had 
acquired a complete title, fortifications, river and harbor improvements, and such 
other things as are commonly understood under the designation of “ Public Works. ” 

In the cases of United States vs. National Surety Company, 92 Fed. 
Rep., 549, and of United States vs. Rundle, 100 Fed. Rep., 400, it was 
held: 

The bond which is provided for by the act was intended to perform a double 
function. In the first place to secure to the Government, as before, the faithful 
performance of all obligations which a contractor might assume towards it; and in 


24 


the second place to protect third persons from whom the contractor obtained materials 
or labor. 

In United States vs. Jack, 124 Mich., 210, it was held : 

Subcontractors who supply labor and materials in the prosecution of the work 
under a contract between the Government and the contractor are protected by this 
statute. Such subcontractors are those who are in the same relation to the contractor 
as he is to the Government. 

In United States vs. Morgan, 111 Fed. Rep., 474, it was held : 

Where one has furnished materials to a contractor having a contract with the 
United States he may recover from the surety, on the contractor’s bond, a fair price 
for all such materials which he furnished and which actually entered into the con¬ 
struction of the work, and the expense in transporting such materials to the place 
where they were to be used under the contract but he may not recover for tools and 
appliances to be used by the contractor for his own convenience and advantage in 
the execution of his contract. 

Let me call your attention, however, to the limit of liability of the 
surety under this act as expressed by the court in the case of American 
Surety Company vs. United States, 127 Ala., 349: 

Although a surety is liable for materials furnished to a contractor this liability 
does not extend to materials for which his principal is not liable, such as materials 
furnished to a subcontractor. 

The act of August 13, 1894, which I have above quoted, was amended 
by the act of February 24, 1905 (32 Stat. L., 811-812), this latter act 
providing as follows: 

That hereafter any person or persons entering into a formal contract with the 
United States for the construction of any public building or the prosecution and 
completion of any public work or for repairs upon any public building or public 
work, shall be required before commencing such work, to execute the usual penal 
bond, with good and sufficient sureties with the additional obligation that such con¬ 
tractor or contractors shall promptly make payments to all persons supplying him or 
them with labor and materials in the prosecution of the work provided for in such 
contract, and any person, company, or corporation who had furnished labor or 
materials used in the construction or repair of any public building or public work, 
and payment for which has not been made, shall have the right to intervene and be 
made a party to any action instituted by the United States on the bond of the con¬ 
tractor, and to have their rights and claims adjudicated in such action and judgment 
rendered thereon, subject, however, to the priority of the claim and judgment of the 
United States. If the full amount of the liability of the surety on said bond is 
insufficient to pay the full amount of said claims and demands, then after paying the 
full amount due the United States the remainder shall be distributed pro rata among 
said interveners. If no suit should be brought by the United States within six 
months from the completion and final settlement of said contract, then the person or 
persons supplying the contractor with labor and materials shall, upon application 
therefor, and furnishing affidavit to the department under the direction of which said 


25 


work has been prosecuted that labor or materials for the prosecution of such work 
has been supplied by him or them, and payment for which has not been made, be 
furnished with a certified copy of said contract and bond upon which he or they 
shall have a right of action, and shall be and are hereby authorized to bring suit in 
the name of the United States in the Circuit Court of the United States in the dis¬ 
trict in which said contract was to be performed and executed, irrespective of the 
amount in controversy in such suit and not elsewhere for his or their use and benefit 
against said contractor and his sureties and to prosecute the same to final judgment 
and execution: Provided, That where suit is instituted by any such creditors on the 
bond of the contractor it shall not be commenced until after the complete perform¬ 
ance of said contract and final settlement thereof, and shall be commenced within 
one year after the performance and final settlement of said contract and not later: 
And it provided further , That where suit is so instituted by a creditor or by the 
creditors only one action shall be brought and any creditor may file his claim in 
such action and be made party thereto within one year from the completion of the 
work under said contract and not later. If the recovery on the bond should be 
adequate to pay the amounts found due to all of said creditors, judgment shall be 
given to each creditor pro rata of the amount of the recovery. The surety on said 
bond may pay into court for distribution among said claimants and creditors the 
full amount of the sureties’ liability, to-wit, the penalty named in the bond, less any 
amount which said surety may have had to pay to the United States by reason of the 
execution of said bond and upon so doing the surety will be relieved from further 
liability: Provided further , That in all suits instituted under the provisions of this 
act such persona] notice of the pendency of such suits informing them of their right 
to intervene as the court may order shall be given to all known creditors and in 
addition thereto notice of publication in some newspaper of general circulation at 
least three successive weeks, the last publication to be at least three months before 
the time limited therefor. 

To the importance of this act I wish to call your especial attention, 
for it will doubtless many times occur in your experience that complaints 
will be made to you by subcontractors, laborers, and materialmen that the 
original contractor has not satisfied his indebtedness to them. The act of 
February 24, 1905, is the latest law on the subject and you should 
thoroughly familiarize yourself with it in order that you may intelligently 
advise the unpaid creditors of a principal contractoi as to their rights and 
mode of procedure in the premises. 

By section 3738, Revised Statutes, it was provided that 

Eight hours shall constitute a day’s work for all laborers, workmen and mechanics 
who may be employed by or on behalf of the Government of the United States. 

The statute just quoted was subsequently amended and extended by 
the act of August 1, 1892 (27 Stat. L., 340), section 1 of which is as 

follows : 

That the service and employment of all laborers and mechanics who are now or 
may hereafter be employed by the Government of the United States, by the District 
of Columbia, or by any contractor or subcontractor upon any of the public works of 


26 


the United States or of the said District of Columbia, is hereby limited and restricted 
to eight hours in anyone calendar day and it shall be unlawful for any officer of the 
United States Government or of the District of Columbia or any such contractor or 
subcontractor whose duty it shall be to employ, direct or control the services of .such 
laborers or mechanics to require or permit any such laborer or mechanic to work 
more than eight hours in any calendar day except in case of extraordinary emergency. 

Of the right and power of Congress to enact this law, the court in the 
case of United States vs. San Francisco Bridge Company, 88 Fed. Rep., 
891, used this language : 

Congress has power to prescribe the terms and conditions under which labor shall 
be performed in the construction of public works of the United States, and without 
reference to the fact whether such public works are or are not upon land over which 
the National Government exercises political jurisdiction. 

In the case of United States vs. Jefferson (60 Fed. Rep., 737), the 
court held : 

The crew of a vessel belonging to the War Department used in the removal of 
obstructions to navigation in rivers and harbors are laborers of z different kind from 
those who are ordinarily employed upon public works of the United States: If part 
of the crew of such vessel is also sent to labor in removing snags and obstructions 
from the rivers and harbors, in order to convict the officer of the vessel under section 
2 of this statute, it would have to be found that the defendant required them upon 
the public work aside from their duties as seamen or deck hands on the vessel to 
perform more than eight hours work in a day. 

In connection with this act the Attorney-General (20 Op. Atty. Gen., 
445), held : 

A new timber dry dock intended to be a valuable and permanent improvement of 
real estate belonging to the United States and solely for its use and benefit is to be 
regarded as one of the public works of the United States under this statute. 

Where, for any reason, the hours of labor fixed by the act are exceeded, 
it may happen that you will be called upon to determine the rights of such 
laborers to extra compensation. The following quotation from the opinion 
in the case of United States vs. Moses (126 Fed. Rep., 67) may aid you 
in such case: 

If a workman is required by the officer in charge of the work to perform more 
labor each day during a part of his term of employment than the law allows, then 
the officer is an offender unless there is an emergency ; but that fact does not fix the 
wages of the workman or establish an agreement either express or implied when one 
did not exist before and he is not entitled to recover compensation for the labor per¬ 
formed by him in excess of eight hours on each calendar day. 

Your attention is also invited to section 2 of the act last quoted, which 
provides : 

That any officer or agent of the Government of the United States or of the District 
of Columbia or any contractor or subcontractor whose duty it shall be to employ, 


27 


direct or control any laborer or mechanic employed upon any of the public works of 
the United States or of the District of Columbia who shall intentionally violate any 
provision of this act shall be deemed guilty of a misdemeanor and for each and every 
such offense shall upon conviction be punished by a fine not to exceed one thousand 
dollars or by imprisonment for not more than six months or by both such fine and 
imprisonment in the discretion of the court having jurisdiction thereof. 

In this connection let me remind you that by a comparatively recent 
order of the President it is required that all contracts, such as those for 
public works with which you will have to deal, shall contain an express 
stipulation relative to the observance by the contractor of the eight hour 
labor law. The enforcement of the provisions of this law is not a duty 
for the Engineer Officer in charge of the work, no more so than the 
enforcement of any other penal statute. 

By section 3739, Revised Statutes, it is provided : 

No member of or delegate to Congress shall directly or indirectly, himself, or by 
any other person in trust for him, or for his use or benefit, or on his account, under¬ 
take, execute, hold, or enjoy, in whole or in part, any contract or agreement made 
or entered into in behalf of the United States, by any officer or person authorized to 
make contracts on behalf of the United States. Every person who violates this 
section shall be deemed guilty of a misdemeanor, and shall be fined three thousand 
dollars. All contracts or agreements made in violation of this section shall be void; 
and whenever any sum of money is advanced on the part of the United States, in 
consideration of any such contract or agreement, it shall be forthwith repaid; and in 
case of refusal or delay to repay the same, when demanded, by the proper officer of 
the department under whose authority such contract or agreement shall have been 
made or entered into, every person so refusing or delaying, together with his surety 
or sureties, shall be forthwith prosecuted at law for the recovery of any such sum 
of money so advanced. 

Of this section it was said by the courts in the case of United States 
vs. Dietrich, 126 Fed. Rep., 671. 

Members of Congress and delegates are prohibited from holding or enjoying any 
contract or agreement with the United States irrespective of when or how they 
became parties to it. 

Where a contract valid when made is subsequently attempted to be assigned or 
transferred to a member of, or delegate to Congress, it is not necessary, if permis¬ 
sible, to invalidate it from the very beginning. The purpose of the statute is 
accomplished by invalidating only the assignment or transfer and by leaving the 
individual with whom the contract was originally made charged with the full per¬ 
formance of his obligations thereunder. 

In the same case it was further held : 

It is not necessary to invalidate from the beginning a contract lawfully entered into 
when during its life the individual with whom it was made becomes a member of or 
delegate to Congress. The contract should be terminated in so far as it is execu¬ 
tory but without extinguishing or avoiding even if that were permissible, the rights 
of either party acquired by its lawful performance or by its breach up to that time. 


28 


The Attorney-General (18 Op. Atty. Gen., 286) has said of this statute: 

Signing a contractor’s bond would not give the surety any immediate personal 
interest in its benefits. He is not a contractor with the Government nor does he 
under any circumstances become so under the statute; * * * therefore a mem¬ 

ber of or delegate to Congress may be lawfully accepted as a bondsman on a contract 
with the Government. 

While this section of the statute prohibits a member of Congress from 
enjoying any contract made with the United States, it has been held by the 
courts that the District of Columbia is a separate municipal corporation 
and that this law does not therefore prohibit a Senator from leasing 
property to the said District, such a lease or contract not being “with 
the United States” within the purview of the act. (13 Comp. Dec., 533.) 

In connection with the statute last quoted let me also read the follow¬ 
ing sections of the Revised Statutes. 

Section 3740, Revised Statutes, provides: 

Nothing contained in the preceding section shall extend or be construed to extend 
to any contract or agreement made or entered into or accepted by any incorporated 
company, where such contract or agreement is made for the general benefit of such 
incorporation or company; nor to the purchase or sale of bills of exchange or other 
property by any member of or delegate to Congress where the same are ready for 
delivery and payment therefor is made at the time of making or entering into the 
contract or agreement. 

Section 3741, Revised Statutes, provides: 

In every such contract or agreement to be made or entered into or accepted by or 
on behalf of the United States there shall be inserted an express condition that no 
member of or delegate to Congress shall be admitted to any share or part of such 
contract or agreement or to any benefit to arise thereupon. 

Section 3742, Revised Statutes, provides: 

Every officer who, on behalf of the United States, directly or indirectly makes or 
enters into any contract, bargain or agreement in writing or otherwise other than 
such as are hereinbefore excepted, with any member of or delegate to Congress shall 
be deemed guilty of a misdemeanor and shall be fined three thousand dollars. 

By section 3744, Revised Statutes, it is provided : 

It shall be the duty of the Secretary of War, of the Secretary of the Navy and of 
the Secretary of the Interior, to cause and require every contract made by them 
severally on behalf of the Government or by their officers under them appointed to 
make such contracts, to be reduced to writing and signed by the contracting parties, 
with their names at the end thereof, a copy of which shall be filed by the officer 
making and signing the contract in the Returns Office of the Department of the 
Interior as soon after the contract is made as possible and within thirty days together 
with all bids, offers and proposals to him made by persons to obtain the same and 
with a copy of any advertisement he may have published inviting bids, offers or 


29 


proposals for the same. All the copies and papers in relation to each contract shall 
be attached together by a ribbon and seal and marked by numbers in regular order 
according to the number of papers composing the whole return. 

This section has been a prolific source of trouble for the officers and 
agents of the three departments therein mentioned and to the accounting 
officers of the Government. It is equally important with sections 3709 
or 3737 and I, therefore, ask your indulgence if I seem to devote too 
much attention to it. 

Let me impress upon you that this statute is imperative and mandatory 
in its requirements, and not merely directory to the contracting parties. 
(See Steele vs. United States, 19 Ct. Cl., 181; 22 Op. Atty. Gen., 98.) 
As between the Government and the contractor it is a statute of frauds. 
It does not prohibit the making of contracts, but regulates the manner of 
making them. (Danold’s Case, 5 Ct. Cl., 68.) 

The provisions of this section are not applicable alone to those con¬ 
tracts which are made after advertisement and compliance with other 
formalities. We have seen (in the course of my discussion of section 
3709, Revised Statutes) that so-called “emergency” contracts may, under 
certain conditions, be made without first advertising. In the case of Cobb 
vs. United States, 18 Ct. Cl., 515, it was expressly held that these 
“ emergency ” contracts, as well as the others, must be reduced to writing, 
as required by this section. This principle is clearly recognized by the 
Comptroller of the Treasury in 13 Comp. Dec., 750. In the case of 
Clark vs. United States, 95 U. S., 539, it was held that a contract not 
reduced to writing as required by this statute was absolutely void. Mr. 
Justice Bradley, in delivering the opinion of the court, used the following 
language: 

Perhaps the primary object of the statute was to impose a restraint upon the officers 
themselves, and prevent them from making reckless engagements for the Govern¬ 
ment; but the considerations referred to make it manifest that there is no class of 
cases in which a statute for preventing frauds and perjuries is more needed than in 
this. And we think that the statute in question was intended to operate as such. 
It makes it unlawful for contracting officers to make contracts in any other way than 
by writing signed by the parties. This is equivalent to prohibiting any other mode 
of making contracts. Everyman is supposed to know the law. A party who makes 
a contract with an officer without having it reduced to writing is knowingly accessory 
to a violation of duty on his part. Such a party aids in violation of the law. * * * 
We do not mean to say that where a parol contract has been wholly or partially 
executed and performed on one side the party performing will not be entitled to 
recover the fair value of his property or services. On the contrary we think he will 
be entitled to recover such value as upon an implied contract for a quantum meruit. 

In Monroe vs. United States, 184 U. S., 527, it was held : 

It is the final written instrument that the statute contemplated shall be executed 


30 


and signed by the parties and which shall contain ancf be the proof of their obligations 
and rights. 

To bind the United States contract by the Navy Department must be in writing 
and signed by the contracting parties. The preliminary memoranda made by the 
parties for use in preparing a contract for execution in form required by law are not 
sufficient. 

The negotiations, correspondence, proposals, acceptance, etc. r in writing, signed- 
in part by one party, and in part by the other, do not constitute sufficient com¬ 
pliance with the provisions of this section to constitute a valid contract. 

In McLaughlin vs. United States, 36 Ct. CL, 177, it was held : 

The preliminary advertisements, specifications and proposals and acceptance of 
proposals must be viewed as becoming a part of the statutory contract when the con¬ 
tract was executed as required by this statute, but until then only as a part of the 
negotiations looking to a formal contract case. 

In Henderson’s Case, 4 Ct. CL, 75, the court held that it was as much 
the duty of the contractor as of the Government officer to see that the 
contract is reduced to writing, as required by this section. And in St. 
Louis Hay Co. vs. United States, 37 Ct. CL, 283, it was said : 

The fact that the officers of the Government neglected their statutory duty and 
that the contractor being ignorant of the law relied upon them and complied with 
their demands in the belief that he was legally bound to do so when he was not, does 
not take the case out of the statute. 

The foregoing citations, as you will note, deal exclusively with either 
the abstract principle represented by the language of the statute or else 
with contracts which were in whole or in part executory. However, I 
beg to call your attention to the decision of the United States Supreme 
Court in the case of St. Louis Hay, etc., Co. vs. United States, 191 U. 
S., 159, wherein it is held : 

The invalidity of a contract, by reason of the provisions of this section, is imma¬ 
terial if the contract has been performed. 

In other words, if a duly authorized officer of the Government has 
contracted for material or supplies, but has failed to reduce his con¬ 
tract to writing as required by this section, and if the material or 
supplies have been actually received, accepted, and used by the Gov¬ 
ernment the mere fact that the requirements of this statute were not 
complied with will not defeat the right of such person to recover the 
value thereof as upon an implied contract on a basis of quantum meruit. 

The following decisions of the Comptroller of the Treasury will 
perhaps illustrate the better: 

In 13 Comp. Dec., 12, et seq., is reported a case wherein Major 
McKinstry entered into a parol contract with the Harmon Lumber 
Company whereby the contractors were to furnish a water tank for 


31 


shipment to the Philippines and to deliver the same at the front 
wharf, San Francisco, in consideration of the sum of two hundred 
and ten dollars ($210.00). Major McKinstry reported that the tank 
was formally inspected and accepted at the plant of the contractors 
about April 1, 1906. The great fire of San Francisco on the 18th 
of April, 1906, destroyed the tank before it was delivered on the 
wharf as required. The Comptroller, under the facts above stated, 
held that the title to the tank did not pass until it was actually de¬ 
livered at the wharf and that, had it been so delivered and there 
accepted by the Government, regardless of the provisions of 3744, the 
contractor would have been entitled to payment upon an implied con¬ 
tract for a quantum valebat. The Comptroller very properly held that 
the parol agreement itself was void. This last statement calls to my 
mind that fact that in the Army Regulations and also in the Engineer 
Regulations (edition of March 2, 1906, section 253) it is stated that 
supplies and non-personal services may be procured as conditions 
warrant and require M 4. By oral agreement, after inquiry, in the 
manner common among business men.” 

I feel confident that from what I have already said and from the 
authorities which I have heretofore quoted to you, you will readily 
see that the quotation above made should be stricken from the regu¬ 
lations or else should be explained so as to dispel the misapprehension 
of law which it creates. In the Harmon Case, just discussed, as well 
as in all the other authorities bearing on this point, we have seen con¬ 
clusively that an oral contract or agreement made by any officer of 
the War, Navy, or Interior Departments is absolutely void. If, pur¬ 
suant to oral agreement, supplies are received by the Government or 
labor performed for the Government, it is true that payments therefor 
may be made. But this payment, I beg you bear in mind, is not 
predicated upon nor justified by the theory that it is a payment under 
a valid contract. On the contrary, the fact that the Government 
has derived the benefit from the materials or labor in question would 
create in law an implied contract and the payment is merely a quantum 
meruit ora quantum valebat arising out of such implied contract when 
the oral contract itself was utterly void under section 3744. . 

In 10 Comp. Dec., 130, et seq., the case was about this: A steamship 
company, in reply to circular letter, submitted a bid or proposal offering 
to transport troops from New York City to Port Royal at a specified 
rate per man, including meals. By reason of missing connections, 
the troops were delayed at Savannah and were subsisted by the con- 


32 


tractor. Subsequently, the contractor filed a claim for the subsistence 
of the troops while delayed at Savannah. 

It was held by the Comptroller that the bid and acceptance thereof 
were absolutely void as a contract under the requirements of section. 
3744, but, that as the services had been rendered, compensation 
therefor upon an implied contract, quantum meruit , might be allowed. 
In determining what was the proper quantum meruit the Comptroller 
based his allowance upon the bid of the contractor and disallowed the 
claim for the additional subsistence. 

In 8 Comp. Dec., page 104, et seq., you will find a very thorough and 
exhaustive consideration of section 3744 and its effect, as well as other 
collateral questions. For our purposes, let it suffice to quote the fol¬ 
lowing paragraphs from the syllabus thereof : 

Section 3744, Revised Statutes, which requires that contracts entered into by cer¬ 
tain officers shall be in writing, does not apply to implied contracts or to a waiver of 
the time limitation in an existing written contract. 

An extention to a future specified date of the time specified in a contract for the 
completion of the w r ork provided for therein is a new contract materially modifying 
the terms of the preexisting contract, and section 3744, Revised Statutes, requires that 
such a contract, when made by any of the officers of the Government to which that 
section applies, shall be in writing and signed by the contracting parties at the end 
'thereof. 

When a formal contract is reduced to writing according to the re¬ 
quirements of section 3744, evidence offered by the officers of the 
Government against its own interests and inconsistent with the terms 
of the written contract made by them will not be admissible for the 
purpose of showing that a different contract was intended. In this 
connection I would suggest that you carefully examine the case re¬ 
ported in 11 Comp. Dec., 113, et seq. 

For other cases wherein you will find good illustrations of the appli¬ 
cation of section 3744 and its effects, I would refer you to the fol¬ 
lowing decisions of the Comptroller, which we shall not have time 
to discuss at the present time: 

9 Comp. Dec., 457; ibid., 558; ibid., 664; 10 Comp. Dec., 26; 
ibid., 132; ibid., 731; 11 Comp. Dec., 114; ibid., 604; 12 Comp. 
Dec., 81; ibid., 83; 13 Comp. Dec., 16; ibid., 752. 

To answer a question which was put to me a few days ago by an 
officer, I shall merely add that the provisions of section 3744 do not 
apply to those contracts which are made by officers of the Engineer 
Corps detailed as engineers of the Light-House Board or who are 
serving under detail with some executive other than the three named 
in the statute. 


33 


The foregoing suggests one other point which I should call to your 
attention, since you may some day be detailed to serve under the 
Light-House Board. I have pointed out to you the requirements of 
the section 3709 as to the necessity for advertising for proposals and 
the interests in which or circumstances under which those requirements 
may be waived. However, when you come to make a contract for 
the erection of a light-house you will be governed by section 4667, 
Revised Statutes, which provides as follows: 

No contract for the erection of any light-house shall be made except after public 
advertisement for proposals in such form and manner as to secure general notice 
thereof, and the same shall only be made with the lowest bidder therefor, upon 
security deemed sufficient in the judgment of the Secretary of the Treasury (now 
the Secretary of Commerce and Labor). 

When you shall have reduced a contract to writing in compliance 
with section 3744, it then becomes your duty to forward a copy 
thereof to the Returns Office, Department of the Interior. In con¬ 
nection with the transmittal of such copy, you should closely observe 
the requirements of section 3745, Revised Statutes, which is as follows: 

It shall be the further duty of the officer before making his return, according to 
the preceding section, to affix to the same his affidavit in the following form, sworn 
to before some magistrate having authority to administer oaths: I do solemnly swear 
(or affirm) that the copy of contract hereto annexed is an exact copy of a contract 

made by me personally with-; that I made the same fairly without any benefit 

or advantage to myself or allowing any such benefit or advantage corruptly to the 

said-, or any other person; and that the papers accompanying include all 

those relating to the said contract as required by the statute in such case made and 
provided. 

Otherwise you may, against your preference, become familiar with 
section 3746, which provides: 

Every officer who makes any contract and fails or neglects to make return of the 
same according to the provisions of the two preceding sections, unless from unavoid¬ 
able accident or causes not within his control, shall be deemed guilty of a misde¬ 
meanor and shall be fined not less than one hundred dollars nor more than five 
hundred and imprisoned not more than six months. 

It is unnecessary that I should do more than quote section 3747 of 
the Revised Statutes: 

It shall be the duty of the Secretary of War, of the Secretary of the Navy and of the 
Secretary of the Interior to furnish every officer appointed by them with authority to 
make contracts on behalf of the Government with a printed letter of instructions, 
setting forth the duties of such officer, under the two preceding sections, and also to 
furnish therewith forms, printed in blank of contracts to be made and the affidavit 
of returns required to be affixed thereto so that all the instruments may be as nearly 
uniform as possible. 




34 


In what I have said up to the present time, it has not been my in¬ 
tent to cover all of the statute provisions relating to Government con¬ 
tracts. On the contrary, it has been my desire to merely select the 
more important of those with which you will have to deal and which, 
if we may judge from the number of decisions in which they have 
been discussed, have caused the greatest amount of trouble. 

Before closing, there is one other point to which I desire to call 
your attention. The act of July 31, 1894, known as the Dockery 
Act, 28 Stat. L., 205, 211, contains the following provision: 

Disbursing officers, or the head of any executive department, or other establish¬ 
ment not under any of the executive departments, may apply for and the Comptroller 
of the Treasury shall render his decision upon any question involving a payment to 
be made by them or under them, which decision, when rendered, shall govern the 
Auditor and the Comptroller of the Treasury in passing upon the accounts containing 
said disbursement. 

It wfll doubtless occur that in many cases and instances you will be 
confronted by questions which involve directly or indirectly a payment 
of public money and, consequently, your financial accounts. ^When 
such a doubt arises, I urge you to avail yourself of the law above 
quoted, which seeks to protect you, and refer the case to the Comp¬ 
troller for advance decision. His decision, whether right or wrong, 
is full acquittance to you for payments made by you under his direc¬ 
tion or authority. In like manner, when a legal right or a legal ex¬ 
emption is claimed by the contractor, let me advise you against hasty 
action or refusal to consider the claim. The transmittal thereof by 
you to the proper legal officer—whether to the Comptroller or to the 
Judge-Advocate-General—will not only protect you, but it may serve 
to determine promptly and without delay incident to court proceed¬ 
ings a matter of vital interest to your fellow-citizen. 


Lecture No. 3. 

In the course of the preceding lectures it has been my aim and en¬ 
deavor to familiarize you not only with the text of certain important 
statutes under which you will have to operate, but also to impress 
upon you the views expressed in actual cases by the courts, the 
Attorney-General and the Comptroller of the Treasury as to the 
meaning, the scope and effect of those laws. In doing so it was my 
hope that it might prove of value and benefit to'you in the administra¬ 
tion of your duties. 

However, there are many other questions which may at one time 
or another arise for your decision, often times involving delicate and 
complex questions of law; and it is my purpose to-day to select and 
briefly discuss a few of the questions concerning which there seems 
to exist doubt and confusion in the minds of many of the contracting 
officers of the Government. 

In a little volume which I published last summer it was my aim and 
effort to present some of the most elementary principles of contract 
law. As I am informed that copies of that book have been placed in 
your hands by the War Department, I shall not here rethrash its con¬ 
tents. Rather, shall I proceed upon the assumption that you are 
familiar with its contents; that you know the principles of proposal 
and acceptance; that you know the distinction between expresss and 
implied contracts or between executory and executed contracts, and 
the definitions of each ; that you know what qualifications contracting 
parties must possess and how such parties must sign the instrument; 
and that you clearly understand the difference and distinction between 
"penalty” and "liquidated damages,” as well as the main rules of 
interpretation. 

Let me therefore avoid repetition of any of those principles and now 
ask your attention in connection with some more advanced practical 
questions. 

INSPECTION BY GOVERNMENT OFFICERS. 

In the forms of contracts now in use by the several bureaus of the 
War Department, we not infrequently find the insertion of a provision 
to the effect that materials or supplies furnished or work performed 
under the contract shall be inspected by the officer in charge or dele- 


36 


gated for that purpose, and that all disputes relative to the quantity 
or quality of materials or the like shall be decided by such officer and 
that his decision thereon shall be final and conclusive. 

From my personal experience and observation I feel confident that 
the legal force and effect of such stipulation is rarely grasped or under¬ 
stood by the Government contractor. I have personally seen a number 
of cases wherein it was sought by the contractor to have the decision 
of the officer as to quantity or quality of materials made the subject of 
review by the acounting officers by the Government and by the courts. 
While I can truthfully say that I have never known of a case wherein 
the officer was consciously guilty of an abuse of power in that respect, 
I feel that by reason of the law established b\ the authorities, which 
I shall presently quote, I should call to your attention the grave re¬ 
sponsibility which such a contract stipulation places upon you. 

By such stipulation as I have above mentioned, the parties bind 
themselves in advance to recognition of and obedience to the rulings 
or decisions of the officer upon those points. He is an arbiter so 
created by the mutual assent of the contracting parties, and in the 
absence of fraud or gross abuse of power on his part his decisions will 
not be made the subject of review by the courts or by other superior 
authority. 

In the case of Kihlberg vs. United States, 97 U. S., 398, the facts 
were substantially as follows: 

Kihlberg, by formal agreement with the United States, undertook 
and agreed to transport certain Government stores and supplies between 
(whether to or from) certain points in Kansas, Colorado, Texas, In¬ 
dian Territory and New Mexico. 

In the body of the contract it was provided that— 

Transportation to be paid in all cases according to the distance to be ascertained 
and fixed by the Chief Quartermaster of the District of New Mexico, and in no case 
to exceed the distance by the usual and customary route. 

The Supreme Court, affirming the action of the Court of Claims, 
held that by the foregoing provision the parties to the contract clearly 
imposed by mutual assent a duty upon the Chief Quartermaster not only 
to ascertain but to fix the distances, and, in the body of the opinion, 
the court said of these words: 

They seem to be susceptible of no other interpretation than that the action of the 
chief quartermaster in the matter of distances was intended to be conclusive. There 
is neither allegation nor proof of fraud nor bad faith on his part. The difference 
between his estimate of distances and the distance by air line, or by the road, usually 
traveled, is not so material as to justify the inference that he did not exercise author- 


37 


ity given him with an honest purpose to carry out the real intention of the parties as 
collected from their agreement. His action can not, therefore, be substituted to the 
revisory power of the courts without doing violence to the plain words of the contract. 

The case of United States vs. Gleason, 175 U. S., 588, is of such 
importance that I would earnestly recommend the decision therein to 
your careful study, involving, as it did, a contract with the Engineer 
Department of the Army, the form thereof being much like the forms 
now in use and therefore representing a valuable and important state¬ 
ment of the effect to be given to the decisions made by engineer 
officers in contract cases, I beg to quote to you the whole syllabus of 
the case, which is as follows: 

A contract providing that, if the parties of the second part shall, “by freshets, ice 
or other force or violence of the elements, and by no fault of his,” be prevented from 
completing the work at the time agreed upon, such additional time may be allowed 
for the completion as in the judgment of the party of the first part shall be just and 
reasonable; while a previous provision of the contract provides that it may be an¬ 
nulled with the sanction of the chief of engineers, for failure to prosecute the work 
faithfully and diligently in accordance with the requirements—must be interpreted to 
mean that the engineer shall determine whether a failure to complete the work within 
the time limited has been occasioned by freshets or other force of the elements and 
by no fault of the contractor, and if so, what additional time shall be just and rea¬ 
sonable. 

Previous delinquencies of contractors and the futility of previous extensions may 
be taken into consideration by an engineer in determining whether a further extension 
of time for performance should be allowed. 

The judgment of an engineer to whom a contract refers the determination of the 
question of performance can be revised by the court only upon allegation and proof 
of bad faith, or of mistake or negligence so gross as to justify an inference of bad 
faith. 

The basis of the decision of an engineer in the exercise of his power to determine 
the right of a contractor to an extension of time because of interruption by the ele¬ 
ments without his fault need not be expressly stated in order to give efficacy to his 
decision. 

The conclusion of an engineer as to the right of a contractor to an extension of 
time is not prevented from constituting a judgment, within the meaning of a contract 
provision referring the matter to his judgment, merely because the court reaches a 
different conclusion. 

Another leading case upon this same question is that of the Choc¬ 
taw and Memphis Railroad Company vs. Newton et al ., decided by the 
United States Circuit Court of Appeals in 1905 and reported in 140 
Fed. Rep., 225, et seq. The principle of the case is well stated in 
paragraph 1 of the syllabus, which is as follows: 

A contractor for railroad construction work who has voluntarily stipulated in the 
contract that the chief engineer of the railroad company shall act as umpire, to finally 


38 


decide all questions arising as to the construction of the contract, the nature and char¬ 
acter of the work required or done, the classification of materials excavated, and all 
other questions in respect to which there might be dispute or misunderstanding, can 
not impeach the decision of such engineer and recover an amount in excess of that 
shown thereby to be due, except on a clear showing of fraud, or of such an arbitrary 
and wanton disregard of his plain rights as to be the equivalent of fraud and to show 
that the umpire’s action was consciously unjust. A direction to a master that, to 
warrant a finding of fraud in such decision the evidence must be “ reasonably con¬ 
vincing,” does not come up to the measure of proof required. 

The language of the court, however, is so clear and so strong an 
expression of the law on this point that I beg your indulgence while 
I quote as follows from pages 232 and 233 of the opinion: 

In making such a contract the parties dealt with each other at arm’s length. The 
contractors were at perfect liberty to consent to the provisions of the contract or to 
refrain from bidding. 

They are presumed, before bidding or signing the contract, to have fully advised 
themselves of the competency, integrity and judicial fairness of the selected umpire. 
Their voluntary acceptance of him as the final arbiter on disputed matters, as declared 
in the contract, precludes them from any consideration or sympathy because of the 
engineer being in the employ of the railroad company. * * * The contractor is 

presumed to protect himself against possible loss resulting from any adverse judg¬ 
ment of the engineer by the amount of his bid; and when litigation arises over the 
decisions and award of such an umpire, the courts can not, without making a new 
contract for the parties, disregard such positive provisions, or set aside the action of 
the umpire, except for the most grave and cogent reasons. Hence it has become the 
settled doctrine of the law that to give the contractor any standing in a court of 
equity to vacate the final award of the engineer, and give him judgment for a greater 
sum than that allowed in the final estimate, the contractor must show by an over¬ 
whelming weight of the evidence that the engineer was guilty of fraud, or exhibited 
such an arbitrary and wanton disregard of the complainant’s plain rights under the 
contract as to be the equivalent of fraud or committed errors and mistakes to the 
complainant’s prejudice so gross and palpable as to leave no doubt in the mind of the 
court that grave injustice was thereby done him. * * * It is not material how 

the weight of the evidence may be upon this point, unless it shall appear that it is so 
overwhelmingly with the complainant as to give reasons for thinking that the chief 
engineer’s judgment was biased, partial and consciously unjust. (Mundy vs. Louis¬ 
ville & No. Ry. Co., 67 Fed., 633, 638; 14 C. C. A., 583; Elliott vs. M. K. & T. 
R. Co., 74 Fed., 707; 21 C. C. A., 3.) 

So much for the general law on this question. I should be remiss 
in my duty, however, if I failed to call your attention to a very im¬ 
portant case decided by the United States Supreme Court, which de¬ 
fines iw a wav the limit of power and authority on the part of the in¬ 
specting officer. 

In the case of United States vs. Barlow, 184 U. S., 123, the con¬ 
tract involved was for the building of a dry dock for the Navy Depart- 


39 


ment. The specifications, which form a part of the contract, provide 
that: 

The ashlar must be of granite or sandstone of quality approved by the engineer. 

In the body of the contract it was stipulated that all work and materials 
done or furnished were "to be in accordance with the aforesaid plans 
and specifications, subject to the approval of the civil engineer, or 
such other competent officer or person or persons as may for that pur¬ 
pose be designated.” 

The contractor, who had based his bid on the use of sandstone for 
the work, soon after the inception of the work, tendered to the civil 
engineer a sample of the sandstone which he proposed to furnish and 
also offered to take him to the quarry, whence such sandstone was 
procured. The civil engineer went to the quarry, made an exami¬ 
nation into the nature of the stone and of the quarry itself and, as a 
result thereof, informed the contractors that said stone would "be 
accepted for all work under the contract.” 

Subsequently, the stone delivered at the site of the work was found 
defective and unavailable for the work and the further delivery of 
stone from said quarry was thereupon forbidden. 

Without going into the details of this case, suffice it to say that the 
contractors claimed that the acceptance of the quarry and of the stone 
therefrom "for all work under the contract” as above mentioned was 
final and binding upon the Government. 

Upon this contention Mr. Justice McKenna said: 

We think, indeed, that the engineer in charge of the work was the appointee of 
the parties, and that his decision upon the quality of sandstone was final when prop¬ 
erly exercised, but it could not be exercised in advance of the work and forestall his 
judgment of stone furnished or about to be used, or the judgment of any “other 
competent officer or person or persons” who might be designated by the Navy De¬ 
partment. To so hold would destroy the power reserved by the United States to 
appoint any competent person to inspect the work and material. The engineer was 
given power to judge, not a type of stone, but particular stones. It was such stones 
which were to be “ hard, clean, and free from seams and imperfections and of good 
bed and build.” Such was the power of the engineer in charge, but who should be 
the “engineer in charge” depended upon the appointment of the Navy Department; 
and the power of appointment was reserved to be exercised at any time. A useless 
right if one appointee could anticipate and control the judgment of his successor. 

In the forms of contract now in use by your department it is gener¬ 
ally provided that in case the contractor should fail to complete his 
contract by the date stipulated, the Government shall have the right 
to complete the same by open-market purchase or by day labor or by 


40 


contract with other persons as it may elect, the contractor to be liable 
for any excess of cost so resulting over and above the contract price 
therefor. 

A leading case on this point is that of Quinn vs. United States, 99 
U. S., 30, et seq. In that case the contractor did not finish his con¬ 
tract by the date specified. The contract was annulled, and after 
advertisement the work was let to another person, who completed the 
work for approximately $33,000.00 less than the contract price of 
Quinn. Upon completion of the work the administratrix of Quinn 
sued the Government for the $33,000.00, claiming that inasmuch as 
Quinn would have been held liable for the excess of cost, so in turn 
he should derive any benefit which might accrue in case of the annul¬ 
ment of his contract. The Supreme Court of the United States, 
however, held that the annulment of the contract terminated the legal 
rights of the contractor in the matter and that he was not entitled to 
recover any part of the sum which by chance had been saved to the 
Government through his default and that he had no interest therein. 

It is likewise customary in most of your contracts to insert a pro¬ 
vision whereunder certain retained percentages (usually 10 per cent) 
from partial payments are to be withheld until the work is completed, 
the payment to the contractor of such retained percentages to be made 
and included in the final settlement. 

A novel and interesting case on this point was decided by the 
Comptroller of the Treasury within the past month in an advance 
decision rendered upon the request of an engineer officer. As I have, 
after exhaustive research, been unable to find a similar case the de¬ 
cision mentioned may prove of interest to you. 

A had a contract for furnishing coal, the price per ton and the rate 
of delivery per month being stipulated. For the performance of this 
contract he gave bond. After making three deliveries under the con¬ 
tract, he became aware that the financial stringency would doubtless 
render it impossible for him to carry out his contract. In perfect 
good faith therefore he so informed his bondsmen and the Engineer 
Officer and it was mutually agreed by all parties concerned that the 
contract should be annulled and that a new contract therefor should 
be entered into with some one else. The contract was in fact an¬ 
nulled and subsequently awarded to B at the same price and on the 
same terms as were recited in the original contract of A. B in turn 
gave bond for the performance of his contract, and it was certified by 
the Engineer Officer that there had been no delay, loss, damage, or 
additional expense entailed upon the Government by reason of the 


41 


default of A . Thereupon A asked for the payment to him of the 
three months’ retained percentages under his contract. His contention 
was that such percentages were retained in the nature of the security 
to the Government for any loss or expense which it might sustain, 
such security being in addition to the bond which he had given; that 
he was liable for the loss or damage caused by his default; that the 
measure of damage in such case was the excess difference between his 
contract price and that of B; that as the contract price of B was the 
same as his own there was and could be no loss or damage for which 
he was liable; and that he was therefore entitled to the payment of 
his retained percentages. The Comptroller, however, held that such 
retained percentages could not properly be paid to A until the work 
for which he had originally contracted had been completed by himself 
or by others and that such retained percentages, as well as the bond 
given by A , were liable in case B or any other subsequent contractor 
defaulted and thereby entailed an additional expense upon the Govern¬ 
ment. 


EXTENSION OF CONTRACT PERIOD. 

If we may accept the past as any indication of the future, it would 
doubtless be your experience that all contractors will not complete the 
performance of their contracts within the period or by the date stipu¬ 
lated. It may, therefore, become your duty at some time to pass upon 
requests for extension of the contract period. 

These extensions, as they are ordinarily called, may be effected in 
two ways. 

First, by fixing a subsequent definite date for the completion of the 
contract in lieu of the date stipulated in the body of the contract. 

Second, by permitting the contractor to continue the prosecution 
of his work after the expiration of the contract period without defi¬ 
nite stipulation as to the period within which or the date by which 
said contract must be completed. To these questions I shall ask your 
attention for a few moments. 

At the outset you should bear in mind that the Comptroller has 
repeatedly and uniformly held that the extension to a future specified 
date of the time provided in a contract for its completion is a new 
contract modifying the terms of the preexisting contract and, that in 
such case therefore the provisions and requirements of section 3744, 
Revised Statutes, are applicable and must be obeyed, necessitating 
the reduction of such agreement to writing and the signature thereto 


42 


of the contracting parties at the end thereof. (8 Comp. Dec., 104; 
18 Mss. Dec. of Comp., 767, 829; 21 idem., 374.) 

Where any extension of the contract period is granted, such exten¬ 
sion should be granted prior to the expiration of the original contract 
period. An extension granted after such original contract period has 
expired is unauthorized. (See 5 Comp. Dec., 83.) And in this con¬ 
nection I would suggest that you examine the decision of the Comp¬ 
troller in 11 Comp. Dec., 394, et seq., wherein it was very properly 
held that a retroactive extension of a contract period which will 
operate to remit damages or penalties under the original contract, and 
which have already accrued to and vested in the United States by 
virtue of the provisions of such original contract, is not authorized. 

In view of the statements above made that a supplemental contract 
should be entered into and executed when the date for the completion 
of a contract is extended to a future specified date, I will impress 
upon you the necessity and propriety of securing the consent of the 
sureties for the contractor to such modification. 

The rule is now clearly established that an officer of the United 
States is not authorized to extend the time for completing the work 
provided for in a public contract so as to relieve the contractor of a 
penalty or of damages provided for therein, nor of the cost of super¬ 
intendence and expenses to be incurred thereunder during the delay 
period, except where such extension is based upon a new and valuable 
consideration. (See 7 Comp. Dec., 92.) 

It is likewise recognized that an extension of the time limit for 
the completion of a contract may be granted by proper authority pro¬ 
vided the extension so granted will not be prejudicial to the interests 
of the Government. The rule is uniform also that no modification 
of a contract may properly be made unless it be for the benefit and 
advantage of the Government. (See 10 Comp. Dec., 319.) 

In connection with the foregoing statements I would commend to 
your consideration the decisions of the Comptroller in 11 Comp. Dec., 
104, and 5 Comp. Dec., 749, wherein it is held that, upon the failure 
of a contractor to complete a contract on time, the penalty or damages 
provided for in the body of the contract immediately vest in the United 
States and that the officers of the Government are without authority 
to waive or to remit them. In numerous cases it has been held by the 
Comptroller, and the rule is now established, that the extension of time 
for the completion of a contract without fixing a new date therefor is 
merely a waiver of the time limit. (See 8 Comp. Dec., 106.) Also, 
that where the time limit for the completion of a contract is thus 


43 


waived, all other provisions of the contract remain in full force and 
effect after the expiration thereof. (See 8 Comp. Dec., 104 and 133.) 

If, therefore, as is frequently done, the contractor is permitted to 
continue the prosecution of his work after the expiration of the con¬ 
tract period and it is deemed inadvisable or unnecessary to make a 
written agreement such as I have mentioned, stipulating a future 
date by which such contract must be completed, the officer in charge 
may, with the prior sanction of proper authority, thus waive the 
time limit. Such a waiver of the time limit leaves all other pro¬ 
visions of the contract in force and to such an indefinite extension 
of the contract period it is not necessary to secure the consent of the 
sureties nor is it necessary to reduce the same to writing under 
section 3744. 

MEASURE OF DAMAGES. 

If the contract provides for liquidated damages in case the contract 
is not completed by the original date stipulated, the sum agreed upon 
as liquid ted damages forms the measure of damage which should be 
charged against the contractor for his breach. (See 10 Comp. Dec., 
605, et seq.) In the forms of contract, other than those which pro¬ 
vide for liquidated damages and which are in use by the Engineer 
Department, it is stipulated at considerable length that, if the con¬ 
tractor shall fail to complete his work by the date agreed upon, he 
shall be liable for all cost of superintendence and inspection during 
the delay period and, also, for all other loss, damage, or additional 
expense to which the Government may be put by reason of his breach 
or default. As a matter of law, such a stipulation is unnecessary, for 
the common law makes the contractor liable for the actual proximate 
or direct damage resulting by reason of his breach. (See 10 Comp. 
Dec., 317, et seq.) 

EXCUSES FOR NON-PERFORMANCE. 

The present form of contract which is in use in your department 
provides, in substance, that if the contractor shall "by epidemics, 
freshets, ice, local or State quarantine restrictions, force or violence 
of elements or other unavoidable cause of delay, and by no fault of 
his own” be actually prevented from commencing or completing his 
contract, the Engineer Officer may, with the prior sanction of the 
Chief of Engineers, allow him an equivalent period of extension, 
during which extension period the cost of superintendence or the im¬ 
position of the penalty clause or the assessment of liquidated damages 
shall not attach. 


44 


There have been a number of decisions by the courts and by the 
Comptroller as to what conditions will excuse a contractor for non¬ 
performance. Many of the Comptroller’s decisions have involved-the 
meaning of the words "or other unavoidable cause of delay and by no 
fault of the contractor." It has been held, for instance, in 6 Comp. 
Dec., 748, that the failure of a subcontractor, even though such sub¬ 
contractor was designated by the Government, would not relieve the 
principal contractor from his liability in case of delay. It is likewise 
held, in 12 Comp. Dec., 167, that labor strikes in the plant of a sub¬ 
contractor or labor strikes in the shops of the contractor himself, nor 
destruction by fire of the subcontractor’s plant, were excuses under 
this clause for non-performance. Also, that the provisions as to the 
freshets or severity of weather do not apply to a subcontractor and, 
that if the delay on the part of the principal contractor was occasioned 
by severity of weather or freshets or abnormal conditions which inter¬ 
fered with the work of the subcontractor, such principal contractor 
was not thereby excused. It would take far too much time to go into 
all of the cases which have arisen under this contract provision and, 
by reason of our limited time this afternoon, I must content myself 
with the following quotation (10 Comp. Dec., 699, et seq.) : 

In the proviso of the fourth paragraph of the contract the general words “or other 
unavoidable cause of delay and by no fault of his or their own ” follow an enumera¬ 
tion of particular causes of delay, viz., “epidemics, freshets, ice, local or State quar¬ 
antine restrictions, force or violence of the elements,” and I am of opinion that the 
general words in the connection in which they are found should be restricted to 
“other unavoidable cause” of the same general or analogous nature as those of the 
particular causes specifically enumerated. The contract should be construed ac¬ 
cording to the apparent intention of the parties who made it, to be gathered, from 
the language used, connected with the subject-matter of the contract, and it should 
be considered as a whole, so that particular words shall not be extended beyond the 
legitimate scope or import which the parties intended by their use. 

If the contractor was delayed in the completion of his contract because his work¬ 
men quit work through sympathy with strikers, as stated, or because of the non¬ 
delivery of certain steel castings ordered from Pittsburg by him, as stated, such 
causes of delay are not the kind of causes which the parties intended should be em¬ 
braced in said general words in the proviso of paragraph 4 of the contract. 

SURETIES. 

The rights of the surety upon the bond of a Government contractor 
is often a confusing proposition to the contracting officers and as the 
surety upon such a bond is especially favored in the eyes of the law, 
a contracting officer can not be too careful in guarding against the 
numerous mistakes, any one of which will serve to release a surety 


45 


from his obligation. An excellent illustration of this will be found in 
the case of United Siates vs. Freel, 186 U. S., 309. In this case the 
contractor entered into formal contract to construct a timber dry dock at 
the Brooklyn Navy-Yard. About six months later the contractor and 
the United States agreed in writing to change and modify the plans 
and specifications so as to increase the length of such dock from 600 
feet to 670 feet. Some months later they further agreed in writing 
to change and modify the contract in certain respects. To make a 
long story short, suffice it to say that the contractor proceeded so 
slowly and unsatisfactorily with the prosecution of his work that the 
Secretary of the Navy, under the right reserved to him in said contract, 
annulled the same and thereafter proceeded to complete the work. 
It appeared that the excess of the cost to the UnitejJ States in this case, 
by reason of the contractor’s default, was approximately $72,500.00. 
For this sum suit was instituted against the surety. 

Following a number of decisions which are discussed in the opinion 
of the court, the Supreme Court held that, as the changes in the con¬ 
tract were made without the knowledge and consent of the surety, 
the surety was released from liability. In this decision you will find 
an interesting discussion of the question. 

In 8 Comp. Dec., 552, et seq ., the case was substantially this: 

The contractor had died before completing his work. His execu¬ 
tors refused to complete it, but his bondsmen or sureties offered to 
complete the work upon certain terms. 

In the body of the decision the Comptroller said: 

If the estate of Jacoby refuses to complete the work under the terms of the contract 
and you fail to exercise your right to rescind and re-let the contract, then the sureties 
of Jacoby have exactly the same right to complete the work under the terms and lim¬ 
itations of the contract as had Jacoby if he had lived or as has his personal repre¬ 
sentative. 

You will have no authority to pay Jacoby or his estate the retained percentages 
until the completion and acceptance of this work, nor have you any authority to pay 
his sureties such retained percentages until the completion and acceptance of the en¬ 
tire work, if you ever have authority to pay them such retained percentages. 

This is not such a contract as was under consideration in 7 Comp. Dec., 402. 
The work does not require any particular artistic skill or personal service, and con¬ 
sequently did not terminate at the death of Jacoby and did not release his estate or 
sureties from the duty of completing the same under its terms. The case in 2 Comp. 
Dec., 346, wherein it was announced that the sureties on a contract can not be rec¬ 
ognized to complete the same on default of the principal, is disapproved by the present 
Comptroller. It announces a doctrine which is not only not supported by authority, 
but utterly repugnant to every idea of good faith and fair dealing between man and 
man. Its effect is equivalent to saying to a surety on a bond, Your principal has 
made default in his contract, and I hold you responsible to make his contract good, 


46 


but I will not permit you to take his place and make it good. It is not intended 
herein to say that when a contractor defaults that his contract should not be rescinded 
and re-let, but it is intended to be said that the sureties have a perfect right to pre¬ 
vent such default as would result in your right to rescind and re-let, by doing the 
work themselves, thereby preventing such default. If, however, where the Govern¬ 
ment is a party, they do such work, there is a practical difficulty in the way, and 
that is the question of payment to them for the work so doae. This difficulty does 
not apply to retained percentages earned by their principals, but to payment for the 
estimated work done by them in carrying out the contract on which they are the 
sureties. The owner of the work contracted for in the case at bar, the District, has 
agreed to pay the contractor. It is not incumbent upon the District, in many cases 
it would be impossible for it, to settle or attempt to settle equities that may exist be¬ 
tween the estate of its contractor and his sureties who complete the work for their own 
protection. If such sureties, in the completion of the work,, are fully indemnified for 
what they do and furnish by the amounts earned by them, by what process of reason¬ 
ing can it be maintained that they are entitled to have in addition something earned 
by the contractor but retained from him by the terms of the contract? On the other 
hand, the very purpose of such retention was to keep the contractor a creditor and 
spur him on to complete the work according to the contract in order that he may col¬ 
lect such retentions and make them his own. The sureties are interested in such re¬ 
tention, and if the owner should pay them to the contractor before they are due under 
the contract, such act would result in the release of the sureties on the ground that 
such action deprives them of a substantial means of indemnity from loss if they are 
called upon to finish the work or respond in damages in case the work is re-let at an 
advance in price over that originally contracted for. (See 57 Fed. Rep., 179.) 

If the sureties complete the work for their own protection, they become trustees 
for the estate of their principal and must respond to it for any profit made on such 
work after fully indemnifying themselves for all proper expenditures on account of 
such work, but they may possibly be paid a fair percentage for their superintendence 
of such work in addition. 

The law being such, how are you to know in advance whether the retained per¬ 
centages due Jacoby at his death will be necessary to indemnify these sureties if they 
complete the work? They may not, depending entirely upon the cost to them of 
completing the grading. 

All I can say to you concerning the subject-matter of your inquiry is that you 
certainly are not authorized to agree with the sureties of Jacoby to indemnify or pay 
to them the amount of retained percentages withheld on the estimates made to Jacoby ; 
that if the sureties without a rescinding of the original contract, or a re-letting thereof, 
complete this work, you are unauthorized to pay them even for the work done by 
them unless you are satisfied that the estate of Jacoby is without equity in such sums. 

This may seem to be a hard rule, but it is the only one that affords protection to 
the Government or the District. It frequently happens that it is only at the end of 
long and expensive litigation between the sureties on bonds who complete the work 
' of their principals with such principals or their estates, that it is known to whom 
belong the proceeds of such work. 

The Government, neither by its auditors nor by its disbursing officers, is prepared 
to settle such perplexing controversies. If the bondsmen can not procure a statement 
from the principals in such contracts, or their estates when the principals are deceased, 
to the effect that the amounts earned by the sureties belong to and are owned by 


47 


them, it would he very unsafe to make such payments. However, the bondsmen are 
not without remedy. They may go into a court and have these equities adjusted 
and ascertained and then we can safely pay under the order of the court. If this is 
not satisfactory to them they may refuse to complete the work, and the Government 
will rescind and re-let. This action would hold the bondsmen liable to make good 
to the Government all damages sustained on account of such re-letting. They are 
free to bid at such re-letting and can, therefore, fully protect themselves so far as the 
law gives them protection. 

The foregoing decision is an important one and states many prin¬ 
ciples with wh ich you should be thoroughly familiar. You must not, 
however, become confused as to its effect, nor must you lose sight of 
the fact that in the case which I have just mentioned it was proposed 
that the Government and the surety should enter into an agreement 
without the knowledge or consent of the contractor’s representatives, 
to the effect that such sureties should receive among other things the 
retained percentages withheld on the work done by the contractor. 
The difficulty presented in the Jacoby case can be obviated in tw r o 
ways. If there be a dispute between the contractor and his sureties 
as to the amount which is due to the sureties for their reimbursement 
in the prosecution and completion of the work, a check may be drawn 
in favor of the original contractor and delivered to the sureties, thus 
leaving it to them to fight it out in court and establish their respective 
equities. The other plan is that suggested and indorsed by the Comp¬ 
troller in 9 Comp. Dec., 43, et seq., wherein it was held (following 
the decision of the Supreme Court in the case of Prairie State Bank 
vs. United States, 146 U. S., 227) that, upon the default of the Con¬ 
tractor a supplemental contract may be entered into by the contracting 
officer with the contractor and his sureties by the terms of which it 
may be provided that the work is to be completed by the sureties. 
By such supplemental contract, however, it should not be provided 
that the Government shall pay to the surety company an amount to 
exceed that which may be necessary to reimburse them for their actual 
outlay and expenses. When the contract has been completed by the 
surety and it has been reimbursed for its outlay and the proper deduc¬ 
tions have been made in favor of the Government, any balance re¬ 
maining must of necessity be paid to the original contractor. (See 
also 12 Comp. Dec., 558, et seq.) 

ANTICIPATING RECEIPT OF FUNDS. 

It will frequently occur in your experience that you will have on 
hand several works for which appropriations have been made and for 
which money is available at the Treasury. It will likewise sometimes 


48 


occur that the funds which have been placed in your hands on 
account of one of these works will be exhausted or will be tempo¬ 
rarily insufficient to meet outstanding liabilities. For additional 
funds requisition will have to be made by you upon the Treasury De¬ 
partment. Pending the receipt of such additional funds upon your 
requisition, it may sometimes occur to you or may, perhaps, be sug¬ 
gested to you by those interested, that you liquidate the outstanding 
liabilities from moneys which you may have on hand to the credit of 
other works, it being, of course, understood that you shall reimburse 
such appropriation as soon as your requisition is honored and the 
money received by you. Such a course is in violation of law and in 
violation of the regulations of the Treasury Department. In this 
connection I would suggest that you carefully read the decision of the 
Comptroller of the Treasury in 14 Comp. Dec., page 332, the syllabus 
of which case is as follows: 

Disbursing officers are not authorized to anticipate the receipt of funds on out¬ 
standing requisitions by making payments from other funds in hand that belong to a 
different appropriation, because funds of one appropriation are never available to pay 
obligations of another unless so provided by law. 

There is one other question to which I wish to call your attention 
before I close. When specifications or drawings are prepared by the 
Government and the contractor is required to bid thereon as distin¬ 
guished from a submission by him of his own plans and drawings for 
the accomplishment of such work, the contractor is liable only for 
faithful and full compliance with the specifications under which he 
is required to work. He is in no sense a guarantor that the speci¬ 
fications or drawings of the Government will prove a success or that 
they will accomplish the end desired. 

Let me illustrate by a recent case: Specifications and drawings were 
prepared for the building of a house, the cellar of which was to be in 
concrete, and in the specifications and contract it was provided that the 
contractor would have to warrant such cellar waterproof for a period of 
five years. In the preparation of the plans and specifications he had no 
voice and had no alternative than to perform the work according to 
the requirements of the person with whom he was dealing. He faith¬ 
fully prosecuted the work to completion and the same was accepted 
from him. A year or so later the cellar leaked and he was called upon 
to carry out his guaranty that the same should be waterproof for a 
period of five years. The court held that, if he had performed 
his work in strict accordance with the plans and specifications on 
which he bid, and had otherwise lived up to his obligations under 


49 


the contract, it was in no sense his duty to repair the cellar in ques¬ 
tion. For such work he was not a guarantor, and the court therefore 
relieved him from further liability under his contract. (District of 
Columbia vs. Galliher, 124 U. S., 504; McKnight, etc., vs. Meyer, 
160 N. Y., 72; Filbert vs. City of Philadelphia, 181 Pa., 530.) 

In connection with the principle just stated, let me urge upon you 
that in the preparation of your plans and specifications and drawings, 
you exercise the utmost care in specifying all that the contractor will 
be required to do. If your specifications are defective and the con¬ 
tractor is required to furnish additional material or to correct errors 
in your plans as the work progresses, you will at once be confronted 
by many puzzling and complicated questions relative to compensation 
for such extras. I regret that my allotment of time is already ex¬ 
hausted, as I should like to discuss with you the rights of the con¬ 
tractor and the liability of the Government for such additional 
materials and the circumstances under which such claims should be 
either allowed or disallowed. However, I can not go into them now. 

In conclusion, gentlemen, I wish to assure you of my most grateful 
appreciation of the very courteous attention you have given me and 
of the patience which you have exhibited. If what I have been able 
to crowd into my three lectures shall prove of slightest service and 
benefit to you, then I shall, indeed, be most happy; 1 can only assure 
you that, at all times in the future, I shall look back with the greatest 
pleasure upon my meeting with you and I shall esteem it both a privi¬ 
lege and an honor to serve you in any wav which you may designate. 






NUMBER 32 

OCCASIONAL PAPERS 

ENGINEER SCHOOL 

UNITED STATES ARMY 


Duties of Engineer Troops 


IN A 

General Engagement 

of A 

Mixed Force 


BT 

CAPTAIN H. BURGESS 
Corps of Engineers , U. S. Army 


WASHINGTON BARRACKS, D. C. 
PRESS OF THE ENGINEER SCHOOL 
1908 


CaOacfcdet. 









I yZ V‘V T, . ■. 

-j <•' . >»- 


V. > 










NUMBER 32 

OCCASIONAL PAPERS 

ENGINEER SCHOOL 

UNITED STATES ARMY 


Duties of Engineer Troops 

IN A 

General Engagement 

OF A 

Mixed Force 

BY 

CAPTAIN H. BURGESS 

Corps of Engineers , U. S. Army 


WASHINGTON BARRACKS, D. C. 
PRESS OF THE ENGINEER SCHOOL 

1908 










* 


* 


D. OF 0. 

SEF 22 1908 






C 





i 




Duties of Engineer Troops in a General 
Engagement of a Mixed Force. 


INTRODUCTION. 

The subject of the >k Duties of Engineer Troops in a General Engage¬ 
ment of a Mixed Force” I have interpreted to mean the duties of engineers 
in the field with a mobile army, and, of course, including all preliminary 
operations as well as the duties during actual combat. Such a subject 
may be treated very briefly by a simple statement of such duties, or it may 
be elaborated into a treatise in which not only the duties are stated, but 
the actual methods of doing the work are given in detail; however, for an 
essay appropriate to the occasion, it is thought that an exposition of the 
subject somewhat between these extremes is desirable, where the duties 
are named and only such details given as involve new methods or such as 
show the relations of the engineer to the other arms of the service. 

The specific duties of the Corps of Engineers of the United States Army 
are prescribed by paragraph 1522, Army Regulations, and include certain 
duties connected with river and harbor works, etc., and with the construc¬ 
tion of seacoast fortifications, and the following strictly military duties : 

(l) Reconnoitering and surveying for military purposes, and laying out 
of camps ; (2) Planning and superintending of defensive or offensive works 
of troops in the field ; (3) Examinations of routes of communications for 
supplies and for military movements; (4) Construction and repair of mili¬ 
tary roads, railroads and bridges; (5) Military demolitions. Other para¬ 
graphs of Army Regulations and of the Field Service Regulations give 
further directions as to engineer duties, but these will not be quoted; 
although certain paragraphs of the Field Service Regulations will be 
referred to hereafter, particularly in a few cases where slight modifications 
in these regulations seem desirable for the purpose of a more clear state¬ 
ment of the division of duties or for the purpose of effecting a better 
rearrangement of duties. 

Included in the second subdivision enumerated above come the opera¬ 
tions connected with the attack or defense of a fortified place by regular 
siege operations. The engineer duties during sieges are even more 
important than with a field army. To such an extent is this true that in 
many important sieges in all countries an engineer officer has been assigned 
to command the attacking or defending forces, and in other cases the chief 



2 


engineer is the principal adviser of the commanding general in all opera¬ 
tions of the siege. But since the duties of the engineer during sieges are 
of a special nature and are so extensive as to call for a separate discussion, 
it is thought that it will be better not to enter further into this divisiom of 
engineer work, particularly as the wording of the subject of this essay 
seems to exclude sieges. It may be remarked, however, that the recent 
siege of Port Arthur showed no change in the general methods, and not 
many changes in the details of operations, except as modified by improved 
materiel. 

For more convenient discussion of the field duties of engineers, I have 
rearranged and further subdivided the distribution given above, and after 
discussing the organization and equipment of engineer troops will take up 
the duties in order under the following heads: (l) Mapping; (2) Bridges 
and Roads; (3) Field Fortifications, including construction of obstacles; 
(4) Removal of Obstacles; (5) Obstruction of the Enemies’ Communi¬ 
cations, including demolitions; (6) Laying out of Camps; (7) Railways. 

ORGANIZATION. 

Before taking up these subdivisions,.a brief outline will be given of the 
organization of the engineer troops and staff officers of a field army. 
Paragraph 3, Field Service Regulations, assigns to each infantry division 
an engineer battalion, with a strength of 19 officers and 658 enlisted men, 
which gives the proportion of engineer troops to the combatant strength 
of the division as one-thirty-third, which is less than is fixed by the cus¬ 
tom of foreign armies. For example, the allowance for a Japanese infantry 
division, as given by Colonel McClernand, not including telegraph 
troops, is about one-eighteenth of the combatant strength, or not far from 
one-twenty-third taking both combatants and non-combatants of the 
division. Major Kuhn’s report shows even a larger proportion. How¬ 
ever, while the proportion of engineer troops allowed by our regulations 
is hardly sufficiently liberal for a small force, as, for example, a single 
division, it is thought that for large armies the prescribed allowance will 
be sufficient with the extra battalions mentioned below. 

The battalion assigned to the division consists of three pioneer com¬ 
panies and one ponton company; each pioneer company consisting of 4 
officers, 24 mounted men and 140 foot; and the ponton company, of 
4 officers, 5 mounted men and 159 foot. The battalion will be com¬ 
manded by a major, with a staff of 2 officers and 2 non-commissioned 
officers. 

Here I will make a suggestion for a change in Field Service Regula¬ 
tions, this being that no designation be made of a ponton company; in 


3 


other words, that the battalion of engineers assigned to each division shall 
consist of four companies, each organized and equipped as described for 
the pioneer companies. Pontoniering is not difficult to learn, and all of 
our engineer companies are instructed in ponton bridge building; in fact, 
it seems far more desirable to specialize the reconnaissance work than to 
specialize the pontoniering. In this essay it is assumed that such change 
has been made. The field Service Regulations also prescribe the assign¬ 
ment to each cavalry division, of a company of mounted engineers. 
While there are no mounted companies of engineers provided for at 
present, it is thought that the regulations contemplate the mounting of 
one of the existing companies or the formation of a provisional company by 
the detail of a sufficient number of mounted men from the several battalions, 
the battalions, however, being filled by further enlistments to full strength. 
The mounted company is assumed to have a strength the same as the 
other companies. 

The staff engineer officers prescribed by regulations are a chief engineer 
each for division, corps, and army commanders. A chief of the railway 
service is prescribed for the commander of the base and lines of com¬ 
munications, and he is presumably an engineer officer. In addition, Army 
Regulations prescribed that when necessary an engineer officer shall be 
director of communications. 

In order to enter somewhat more fully into the subject of engineer 
organization, I have taken a case of an expeditionary army of approxi¬ 
mately 300,000, consisting of twelve infantry divisions, two cavalry divisions, 
and such army reserves of infantry and artillery and such etape troops as 
may be assigned. Although the organization of the army corps is still 
authoritative in our service, I have assumed in this essay that the Field 
Service Regulations have been changed to agree with the more modern 
practice of making the division the tactical unit for larger bodies. To 
make the discussions herein apply to the present organization into corps, 
will require little modification of methods. In the expeditionary force 
specified there will be required for each of the twelve infantry divisions 
one battalion of engineers and for each of the two cavalry divisions one 
company of mounted engineers. These battalions and companies are as 
prescribed by Feld Service Regulations, but in addition it is thought that 
it will be necessary for one battalion of engineers to be assigned to the 
general army reserves, called hereafter the reserve battalion, to have 
charge of the engineer equipage of the army train and to perform field 
duties under the army chief engineer; and further,.for one battalion to be 
assigned to the troops commanded by the commander of the base and 
the lines of communication, called hereafter the base battalion, to have 


4 


charge of the engineer depot at the base and to perform field duties at the 
base and along the lines of communication. The railway engineer troops 
will be under the chief of the railway service, and will be of strength 
according to the circumstances of the case, although for convenience these 
troops will be designated as the railway battalion. Thus for the expe¬ 
ditionary army there will be required fourteefi and one-half battalions of 
engineers, or fifty-eight companies, and a railway battalion, making a pro¬ 
portion of the combatant strength of the army of somewhat less than one- 
thirtieth. Should the expeditionary army, for strategic reasons, be organ¬ 
ized into two or more wings or armies, it may not be necessary to provide 
reserve and base battalions for each of these, although companies from 
those battalions may be assigned to the separate armies when necessary. 

An army of the size mentioned will of course be made up largely of 
volunteers; and, as this is necessarily the case, for reasons of economy, it 
would seem to be advisable to provide in the regular establishment for 
technical troops in much larger proportions than required for the regular 
service alone, this remark applying especially to the Field Artillery, to the 
Signal Corps and to the Engineers. This is very fortunately done in the case 
of the Signal Corps, which has the allowance of companies prescribed for 
twelve infantry divisions, whereas engineer troops are provided for only 
three divisions. However, since it does not seem probable that at present 
there is any prospect of an increase in the number of regular engineer 
battalions, for the above assumed army the engineer troops will of 
necessity be made up chiefly of volunteers. As a suggestion for the 
utilization of the volunteers and regulars, I propose that on the approach 
of hostilities, each engineer company be expanded into two, officered 
by regular officers, and filled by new enlistments or drafts from the 
first reserve if such is hereafter to be provided for by Congress. This 
will provide twenty-four of the fifty-eight companies required,, the addi¬ 
tional companies being provided from the battalions of volunteer engineers. 
To each division, then, will be assigned a provisional battalion com¬ 
manded by a major of regulars and made up of two companies of regulars 
and two of volunteers, the battalion commanders and staff of the volunteer 
battalions being utilized as assistants to the division and army chief engi¬ 
neers. For the cavalry divisions provisional companies will be made up 
of men detailed from the mounted sections of regulars and volunteers, 
their places, however, being filled in their own companies. The reserve 
and the base battalions will be each made up of regular and volunteer 
companies; and the railway battalion, which will have only a nominal 
battalion and company organization, will be made up chiefly of volunteers 
with railroad experience, specially selected officers and non-commissioned 


5 


officers of regulars being assigned to form a nucleus. This battalion will 
be of such size as may be required by conditions ; and will be commanded 
by an engineer officer detailed as chief of the railway service. As to staff 
engineer officers, the army commander will have a chief engineer, who will 
have several engineer officers as assistants, one of whom will act as chief 
topographical officer of the army. Each division commander will have 
a chief engineer with several engineer officers as assistants, one of whom 
will act as division topographical officer. While not provided for by 
regulations, it is thought that the commander of the base and the lines 
of communications should have an engineer officer on his staff, and that 
this officer should act as director of communications and be charged with all 
road and bridge work in rear of the army. The change proposed is to have 
this officer under orders of the base commander instead of directly under 
those of the army commander; and it is of advantage in that it relieves the 
army commander of a supervision which properly belongs to the commander 
of the base. A further change proposed is the assignment of the railway 
duties of this officer to the chief of the railway service; but this is apparently 
contemplated by the Field Service Regulations. Here I would suggest 
a further modification of the regulations, this being that the engineer 
troops of the division shall be under the command of the division engineer, 
who should be the senior engineer officer attached to the division. While 
the functions of the chief engineer of the army are chiefly of an advisory 
nature, the division engineer not only acts as engineer advisor to the 
division commander, but is charged also with the supervision of the execu¬ 
tion of engineer work, this, in fact, being his chief function. This latter duty 
he can best do if all the engineer resources of the division in men and materiel 
are entirely under his control and the entire responsibility for the prosecution 
of the work is placed on him. The above suggested change in regula¬ 
tions would accomplish this, and would also avoid the present anomaly of 
the regulations in having the engineer troops under one command and the 
engineer trains under another. Of course, it is not intended that the pro¬ 
posed change shall result in a reduction of the number of engineer officers 
assigned to the division; thus, for example, the division engineer might 
be a lieutenant-colonel, with a major as assistant commanding the battalion, 
and with a captain or major as assistant to act as division topographical 
officer. 

EQUIPMENT. 

Field Service Regulations provide that each pioneer company shall have 
four pack mules and two wagons for the purpose of carrying intrenching 
tools, explosives, etc. This is the only provision of these regulations that 


6 


prescribes anything in regard to engineer equipment. Further details as 
to equipment must, therefore, be determined from the practice of the engi¬ 
neer battalions; although it seems desirable that the Field Service Regu¬ 
lations should go somewhat further into the subject. It is assumed that 
each of the four companies of the battalion will have the equipment 
prescribed for a pioneer company, that the battalion headquarters will 
have a wagon for carrying surveying and photographic outfits, etc., and 
that the mounted company with a cavalry division will carry its tools and 
materials on twelve to sixteen pack animals. These wagons and animals, 
which accompany the engineer troops, will carry tools and materials for 
their own working parties only, the intrenching tools, etc., for working; 
parties from the infantry being carried in the engineer field park, sections 
of which will be assigned to the division trains of each division and to the 
reserve trains of the army. 

The making up of the lists of tools and supplies to constitute the stand¬ 
ard equipment for the engineer companies has been undertaken at the 
engineer depots, and tentative lists have been adopted. As soon as such 
have been definitely decided on, the results will doubtless be published in 
orders. In this connection I would urge the desirability of not only deci¬ 
ding on what is to be carried, but in adopting standard types and standard 
methods of packing, etc., and then providing equipment for twelve or 
fifteen battalions and storing same at the engineer depots. Commercial 
types of earth-working tools, of bridge tools and supplies, etc., and all 
supplies which might deteriorate, need not be purchased in full quantity 
until the approach of hostilities, although they should be kept on hand in 
sufficient quantity to permit preparations to be made before declaration of 
war, without attracting the publicity which would result from special 
appropriations for purchase of large quantities of these tools and supplies. 
All other equipment, including tool wagons, pack saddles, etc., should be 
kept ready for issue so that a battalion may be equipped at an hour’s 
notice. In designing standard equipment and preparing lists* simplicity 
should always be kept in view. In Major Kuhn’s report there is the fol¬ 
lowing paragraph, which is well worth noting : “ Generally speaking, the 
engineer equipment in the Japanese army is characterized by its simplicity 
and adaptability. Tools and supplies are reduced to the lowest limits 
possible, both as regards variety and quantity. The mistake of attempting 
to provide for every possible contingency that might arise and loading 
down transportation with a lot of useless plunder has been studiously 
avoided.” However, no serious objection can be found to overequipping 
the engineer troops, provided the equipment is so arranged that it can be 
easily subdivided and the least necessary be left behind at any point along 


7 


the line of communications when it may be necessary to do so. Remarks 
as to simplifying the equipment apply only to the field battalions, as the 
base and the railway battalions should be well supplied with labor-saving 
machinery and ample quantities of supplies. 

Bridge equipage will be assigned to the army according to the particu¬ 
lar field of operations; thus a country with numerous wide and deep 
streams will require a much larger assignment of bridge material than one 
where the streams are fewer; or are, as a rule, shallow or narrow. The 
probability of securing and utilizing suitable boats on the streams will also 
be considered. 

The organization of the United States bridge equipage is first into the 
light and heavy equipage or advance guard and reserve. The reserve 
equipage is organized into ponton divisions, each containing the material 
for 225 feet of bridge. The advance guard equipage is likewise organized 
into divisions, each containing the material for about 190 feet of bridge. 
Four ponton divisions of either equipage constitute a train, each train 
having tool, forge, and supply wagons attached. 

As mentioned before, the needs of the army for bridge equipage can 
not be closely determined until the theater of operations is known. In 
the average case it is believed that for the expeditionary army above 
assumed, an assignment of equipage as follows will be approximately 
correct: To each infantry division one reserve ponton division with a tool 
wagon, a forge wagon and two wagons carrying extra balk and chess; 
aggregating eighteen wagons. As an army reserve, and attached to the 
army trains, there will be one complete ponton reserve train and one com¬ 
plete ponton advance guard train, each with tool and forge wagons and 
wagons carrying extra balk and chess. Thus there will be with the army 
material for about 3,600 feet of the heavy bridge and about 760 feet of 
the canvas ponton bridge; and this material can be combined or sub¬ 
divided as required by conditions. Thus it may be determined from 
information obtained from the general map, or from other sources, that 
infantry divisions moving in a certain part of the theater of operations 
require no floating bridges, and their bridge train therefore may be assigned 
to other divisions needing an increased length of bridge material. The 
rule should be that each division have sufficient material to bridge all 
streams encountered except those of extreme width, the bridge equipage 
of the army reserve being called on only in the latter case, when the 
division bridge train may be increased from this source by the addition of 
one or more ponton divisions. The advance guard train will ordinarily be 
used with the cavalry divisions, or, where required, with advance guards 


8 


or detached bodies; and when no longer needed by such bodies it should 
be returned to the army trains. 

The division bridge train and the ponton trains of the army reserve will 
each be in charge of a detail of engineer soldiers commanded by an cffficer, 
who will be responsible for the condition of the equipage. The details 
for the ponton trains of the reserve will be taken from the reserve battalion, 
and for the division train from the divisional engineer battalion. The 
sections of the engineer^ field park assigned to the divisions and those 
assigned to the army reserve will be attached to their respective ponton 
trains. Teamsters for the bridge train and field park, as well as for all 
other engineer transportation, should be enlisted men, preferably of the 
army service corps, if such is provided for by Congress. In any case 
they should be additional to the strength of the companies as now fixed 
by law. Since cooks will be needed for the personnel of the trains, it is 
apparent that the number of cooks now provided for the engineer company 
of 164 enlisted strength is quite inadequate, being the same allowance that 
is made for the smaller infantry company which messes as a whole, while 
the engineer company almost habitually is separated in the field into two 
or more messes. The Signal Corps company with a strength of 150 is 
allowed four cooks, and its need is even less than for the engineer com¬ 
pany. 

Another suggestion which it is thought advisable to make here is that 
there be designed a lighter ponton than the heavy wooden boat now used, 
to be of metal of a similar type to those used in foreign armies. Both of 
the United States engineer officers acting as observers during the Man¬ 
churian campaign have in their reports urged the necessity for experiments 
on this line, and it is understood that recently a metal ponton has been 
constructed and is now being experimented with at the United States 
Engineer School. It is probable that a suitably designed sectional steel 
boat will permit the reorganization of the ponton equipage in such man¬ 
ner that there need be only one class of equipage, the difference between 
the light and heavy bridges being only a question of bridges supported on 
one, two, or three sections of the ponton, with lighter roadway also when 
the full ponton is not used. 

Another suggestion is that in each ponton division there be a traction 
engine, somewhat similar to the type used by the British army. Such an 
engine can be used for drawing three or 1 more of the carriages, thereby 
reducing the number of mules required, and it will also be of the greatest 
service for operating a pile driver, a hoisting engine, a search light, or a 
pump. Such engines were used by the British in South Africa to great 
advantage. A type was used which was provided with a small engine 


9 


suitable for hoisting or for operating a pile driver. Such engines are so 
useful that it is assumed below that at least one will be in the bridge 
trains of each division. Where the roads are so difficult that these can 
not be used, it is probable that the bridge train can not use the roads; but 
if forced to abandon the engines for any reason, animal traction for the 
carriages can be resorted to. 

In addition to the bridge equipage, there will be attached to each 
division a section of engineer field park, which is primarily to supply 
intrenching tools for general use of the division. The portable intrench¬ 
ing tools carried by the infantry soldier will suffice for the hasty intrench¬ 
ing done under fire. The artillery is provided with sufficient picks and 
shovels to construct the hasty shelters required for their guns and per¬ 
sonnel. The engineer troops carry tools for equipping their own working 
parties; but where a position is to be fortified, tools for working parties 
from the line must be provided by the Engineer Department. These 
will be carried in the section of field park, which will also carry extra 
explosives, bridge irons, rope, revetting material, and material for obstacles, 
etc. On a basis of 1200 shovels and spades, 300 picks, 100 axes, 50 
saws, etc., the section of park assignment to a division would consist of 
six to nine escort wagons. There will usually be four or more sections 
of engineer field park attached to the army trains, as a general reserve of 
engineer tools and supplies. The quantity of engineer supplies and tools 
so carried will be dependent on the distance from the base, and other 
conditions. 

At the base there will be organized an engineer depot, to which one of 
the companies of the base battalion will be assigned as a depot company, 
the depot being under the general supervision of the engineer on the staff 
of the base commander. At this depot will be kept in large quantities all 
engineer tools and supplies to replace the expenditures and losses from the 
equipment at the front. 

As it is desirable wherever possible to utilize civilian labor on engineer 
fieldwork, and thus save the troops as much as possible for their special 
combat duties, it is necessary, therefore, that funds should be provided in 
ample amount to permit the hiring of all labor that may be available and 
needed, and the purchase of any material that may be needed for engineer 
work which can be obtained from the inhabitants. Even in hostile terri¬ 
tory it will usually be found desirable to purchase such supplies, since the 
inhabitants then will not be so desirous of concealing them. The engi¬ 
neer funds so provided should be kept by an officer designated for the 
purpose, who will issue, as required, to officers who are to disburse them, 
on requisitions approved by the army chief engineer and by the chief of 


10 


staff. In this way funds will be in the hands of subordinates only when 
actually needed. Some simple method of accounting for such funds 
should be devised by the Treasury Department. 

Other details of equipment and organization will be referred to in 
appropriate places hereafter. 


MAPPING. 

The importance of the map to military campaigns is enormously increased 
by modern conditions of battle ; thus, for example, while the front of 
battle at Gettysburg was about 3 miles, at Mukden it was over 80, and 
the battle movements took place in an area over twice as great as the area 
of Rhode Island. While maps have always been essential for the strateg¬ 
ical operations leading up to a battle, large scale maps of the battlefield, 
while very useful, could formerly be dispensed with, as the commanding 
general had the battlefield practically under his eye; but now the com¬ 
manding general controls the battle only through the aid given by maps 
and by the telephone or telegraph. Therefore, it can be said that mapping 
is one of the most important duties of the engineer. Important even when 
accurate maps are already at hand for the purpose of bringing these up to 
date, and increasing in importance as the available maps are inaccurate, to 
the extreme case where no maps of the theater of operations can be had. 

This duty has been assigned by Army Regulations to the Engineer 
Department, but in defining the duties of the chief of staff the Field 
Service Regulations apparently assigns these duties to the intelligence 
officer. However, it is believed that no contradiction is intended here, 
and that the chief engineer is to be charged with reconnaissance and 
military surveying and the preparation of maps therefrom, and that the 
maps will then be turned over to the intelligence officer to dispose of as 
his duties require. In other words, the chief engineer is the manufacturer 
of the maps, and the intelligence officer disposes of the finished product. 
It might be advisable, however, to slightly modify the wording of the 
paragraph referred to in order to show more clearly the above meaning. 

In time of peace the Military Information Division of the General 
Staff collects from all available sources topographical information and pro¬ 
duces lithograph maps of all territories where United States forces may 
chance to be called for military operations. These maps, of course, vary 
in completeness and accuracy of information, but in the most ordinary 
case an expeditionary army will be supplied by that division with more or 
less accurate small scale strategic maps of the territory to be occupied and 
these may or may not be contoured. These maps will be on a standard 
scale, which is assumed at 1 inch to the mile with 20, 50 or 100 foot con- 


11 


tour intervals, depending on the relief of the country. In addition to these 
maps a smaller scale map will be supplied, scale about 10 miles to the 
inch, having the mountains shown by hachures. The cases where larger 
scale position maps can be supplied will be rare, except in our own 
country; and somewhat less rare will be the case where there are only 
very inaccurate maps available, as those published by cartographers of 
such countries as are little known, the maps of course being on quite 
small scale and quite inaccurate. 

The map work required in the field, therefore, is the preparation and 
reproduction of reconnaissance sketches to add to or correct the informa¬ 
tion contained in existing maps; and the preparation and reproduction of 
maps from data secured by survey parties in rear of the army. The chief 
reconnaissance work is the road sketch and the position sketch; and in 
either the sketching must be done and the map finished and repro¬ 
duced in a single day, in time to permit orders for the next day to be 
issued based on the map. The nature of the reconnaissance problem is 
such, therefore, that the work can be done only by combining the work 
of different sketchers, and this, because of the extent of the front occupied, 
can not be done in a single day for the entire army. Each division, 
however, having the roads of a certain territory assigned for its march, will 
advance on one or more roads, with a front not so extended that the work 
of the individual sketchers can not be combined and reproduced on the 
same day for use that night in preparing orders. The reconnaissance 
work, therefore, except in special cases, will be done separately for each 
division; but copies of all reconnaissance sketches must be immediately 
forwarded to army headquarters so that the army topographical officer can 
combine the work of the different divisions. Survey work, being more 
leisurely done in rear of the army, will be controlled from army head¬ 
quarters. 

For each infantry division a topographic party will be organized and 
will have the 'larger part of its personnel permanently on this duty. As 
mentioned above, the chief of this party will be an engineer officer assist¬ 
ant to the division chief engineer, and he should be selected for his special 
qualifications for this work. The sketchers will be selected from officers 
and enlisted men of the engineer battalion who are skilled in reconnais¬ 
sance work, and from junior officers of the line who may be available for 
this duty and who have had training in this work. There should also be 
two rapid-working draftsmen, who will ordinarily be civilian employees or 
enlisted engineers. For road sketching about fifteen sketchers will be 
required, and for position sketching about thirty. The party should also 
include a cook and six or eight privates to assist in making camp, etc., 


12 


and it should be supplied with two wagons, one for baggage and one for 
the mapping outfit and supplies. In other words, the party must be 
arranged so as to be independent, moving and camping wherever required 
by its work, although when possible it should remain with and be attached 
to battalion headquarters. The reconnaissance instruments and supplies 
and the drafting supplies should be of the ordinary types. The reproduc¬ 
ing outfit will include that for the blue-print process, with a magnesium 
lamp for printing at night, as well as bromide papers for more rapid print¬ 
ing by artificial light. Other contact papers should also be supplied in 
limited quantities. 

The method of conducting the sketching and of combining the work of 
the different sketchers is given briefly in the Engineer Field Manual and 
in somewhat more detail in a pamphlet prepared by Captains Cole and 
Stuart of the engineer department of the Fort Leavenworth schools. To 
get the best results in the quickest time, requires a large number of sketchers, 
but, as has been remarked, “it must be borne in mind that no military 
work is ever planned solely with a view to economy of labor. What is 
required is the absolute certainty of accomplishing a given result in a 
given time.” 

Taking up first the road sketching, the division will usually be advan¬ 
cing along one or more roads, and will be preceded by the cavalry screen 
at a distance in advance of approximately a day’s march; the sketching 
must be done between the cavalry screen and the position of the division, 
and the day’s work will begin where previous day’s work was discon¬ 
tinued; that is, where the end of the day’s march will find the main 
body. The preliminary work of the topographical officer will be to 
designate sketching parties for each of the main roads leading to the front, 
which he can do from the map supplied by the Military Information 
Division. He will also select a rendezvous and set the time for the 
arrival of the sketchers there; the rendezvous being near the proposed 
end of the day’s work. At the hour for starting in the morning, each 
sketching party will start out on the designated road, the principal sketcher 
making sketch of the main road and assistant sketchers of the side roads. 
The paraphernalia will be packed and the wagons and members of the 
topographical party not sketching will proceed directly to the rendezvous, 
where everything will be prepared for combining, by the time set for 
arrival of sketchers. The draftsmen under direction of the topographical 
officer will combine the sketches as they come in, making necessary 
adjustments to make them fit, individual sketchers being consulted when 
necessary. The combined sketch will be immediately traced and blue 
printed, and two or more copies sent by messenger to the division com- 


13 


mander. These copies should ordinarily arrive not later than 9 p. m. and 
in no case later than midnight, and if the sketchers are well trained, the 
work carefully allotted, the topographical officer thoroughly acquainted 
with reconnaissance methods and a good organizer, and the draftsman a 
skillful and rapid worker, this can be done. These copies sent, the repro¬ 
duction should continue until sufficient copies are made for one each to 
brigade commanders, commanders of divisional artillery, cavalry and 
trains, and three or more copies for forwarding to army headquarters. 
These additional copies should be sent to division headquarters as soon as 
possible and in no case later than 4 or 5 o’clock the following morning. 
The scale of the road sketch will be 3 inches to the mile, and the infor¬ 
mation to be entered on such sketch will include the location of roads, 
streams, bridges, ferries, fords, towns, ponds, contours as far to each side 
of the road as practicable, and information as to condition of roads, bridges, 
etc., location and suitable camp sites, including fuel, forage, water, etc. 

In general, for troops on the march information as to the roads is 
wanted, while for taking up a position information of the topography 
between and including the roads is necessary. The method of conduct¬ 
ing a position sketch is somewhat similar to the above; but it will ordi¬ 
narily be preceded by an examination of the ground and a selection of the 
position before the sketch is made. Such examination the division chief 
engineer will make accompanied by the topographical officer who, in some 
cases, will for lack of time himself have to decide on the line to be occu¬ 
pied and the consequent ground to be covered by the sketch; and this is 
one of the reasons why he should be an engineer officer. Of course, 
where time is available the selection of the line to be taken up by the 
division will be done in the usual manner. 

The topographical officer, knowing the defensive position selected, will 
make arrangements for sketching a belt covering the ground for about 1 to 
2 miles in front and to 2 miles in rear of the line to be occupied. He 
will divide up the work so that each sketching party will have an area 
that it can complete in the allotted time; and will assign the sketchers to 
their tasks, and will appoint the place and time for the rendezvous of the 
parties. In conducting the position sketch the work is based on a control 
line, from which sketching parties of three each, sketch about 1 square mile, 
the method permitting the combination of these without any adjustment; 
and as the work is done on suitable paper, the combined sketch may be 
blue printed within a few minutes after the last sketch is in. As men¬ 
tioned before, this method requires a large number of sketchers. If the 
topographic party is not sufficiently large to permit this work, the topo¬ 
graphic officer should in ample time obtain from the engineer battalion 


14 


extra trained men, these returning to their companies when no longer 
needed. It is believed to be better, however, to have the permanent party 
sufficiently large for all work that may be required. Occasionally topo¬ 
graphic parties may be borrowed from other divisions nearby. 

As soon as the combined sketch is completed, it will be blue printed 
and copies sent in the same number and for the same distribution as here¬ 
tofore mentioned. 

The position sketch will ordinarily be on twice as large a scale as the 
road sketch, but in particular cases may be even larger. The information 
contained should include the relief of the ground, woods, crops, and other 
screening objects; in a word, all information necessary in preparing the 
position for defense and in moving forward from it for an offensive move¬ 
ment. 

Generally, it may be said that in reconnaissance work speed is a prime 
requisite, extreme accuracy not being so essential. If the map fulfills 
all the conditions as to the information necessary for marching an army or 
occupying or fortifying a position, it is of little importance that a direction 
is a few degrees out, or that a distance is not exact. The error, though, 
should be that due to imperfection of instruments and approximate 
methods, and not to blunders.” Another point of importance is that “if 
certain military features are shown on the map, the absence of such 
features at other points must be absolute proof that they do not exist.” 

Thus it will be seen that the reconnaissance work of the army will be 
done for each division by its own topographical party; and the chief 
topographical officer of the army will therefore have his force organized 
primarily for instrumental topographic work in rear of the army, and for 
the making and reproduction of maps from data secured by the survey 
party and from the reconnaissance work of the different divisions. For 
the map making there will be an office force including four or more quick¬ 
working draftsmen skilled in topographic work, who will usually be civilians, 
two or more lithographers, one or two photographers, and such other assist¬ 
ants, civilian or enlisted, as may be required, as well as a cook for the party. 
The office equipment will be carried in two escort wagons, and will in¬ 
clude 'a lithographic (or, rather, zincographic) outfit, drawing boards, 
instruments, blue-print outfit, bromide papers, magnesium and acetylene 
lamps, photographic outfit, transit, stadia rods, aneroid barometers, etc., 
and ample supply of all map supplies needed. The topographic survey 
should have as its head a regular or volunteer engineer officer, assistant to 
the chief topographical officer, and it should be of sufficient size to cover 
the country in rear of and keep close behind the army. It will therefore 
require a large number of topographers, most of whom will be civilians, 


15 


many of them from the United States Geological Survey. The topo¬ 
graphical party while at work will be separated from the office of the 
chief topographical officer, and should be equipped with transportation, 
tentage, cooks and assistants, and supplies, so that it may move about 
independently. Its outfit will include plane tables, stadia rods, transits, 
aneroid barometers, etc., drafting boards and papers, as well as light 
spring wagons or buggies for use in traversing, one to each four topog¬ 
raphers. 

The duties of the survey party will be to make a plane table survey of 
the territory passed over by the army, by methods similar to the plane 
table work of the Geological Survey, covering as much of the country 
beyond the flanks as practicable, the sheets of the survey being turned 
in to the chief topographical officer as fast as completed. For this work 
speed also is of greater consideration than for corresponding work in civil 
practice, and the allowable limit of error can be larger. Each sketcher 
ought to cover approximately 4 to 6 square miles per day in average 
country. When the army is halted for any length of time, the survey 
party will ordinarily work up to the line occupied, and can include in its 
maps the fieldworks, etc., of the line of defense. 

The office force of the army topographical party will have the duty of 
combining, redrafting, and reproducing by lithography the reconnaissance 
sheets received from the corps and of the sheets received from the survey 
party; in other words, to issue as rapidly as possible lithograph sheets, on 
standard scales, of maps, embodying all information received, the recon¬ 
naissance work, of course, being superceded by that of the survey party 
as soon as it has covered the same territory. 

Photography is not a great aid to mapping, but as occasionally it is 
useful, as from a balloon, in assisting to locate the enemies’ works and 
forces, especially when provided with a telephoto-lens, photograph outfits 
are carried by each battalion headquarters’ wagon and also in the army 
topographic equipment. The photographers attached to this latter party, 
as well as the battalion photographers, can on many occasions be detailed 
to make photographs which may be of value as historical records. 

The published reports of the observers with the Russians and Japanese 
forces in the recent war give no information as to the reconnaissance work 
in either army, but the surveying and map making in rear of the lines was 
done on both sides by parties organized very much as that proposed 
above. The Russians did not have a great need for reconnaissance maps, 
as they were moving back over country covered by the surveying parties 
working in rear of the army. The Japanese also had good maps of their 
own as far north as Haicheng, and beyond that point excellent maps 


16 


captured from Russians were available. A lesson here might be drawn 
as to the great importance of guarding maps from falling into the enemies’ 
hands, which would imply the printing of the smallest number that will 
serve, and requiring officers to whom these are issued to guard them care¬ 
fully and turn them in when no longer needed, or to destroy them if 
necessary to prevent them falling into enemies’ hands. 

ROADS AND BRIDGES. 

An army retiring through territory which it has before occupied should 
have little road or bridge work to do, and this subject is therefore of chief 
importance in an offensive campaign, where the pursuing army will find 
as it advances, roads obstructed, bridges and ferries destroyed, and fords 
damaged or obstructed. The duties of engineers connected with roads 
and bridges will fall into three stages, the first being the rapid removal of 
obstructions and construction of bridges to permit the passage of troops 
and trains, a minimum time only being available; second, to put roads 
and bridges into condition to facilitate bringing up supplies and at the 
same time releasing the portable bridge equipage, more time being avail¬ 
able ; and the third stage being the increasing of the capacity of the lines 
of communications, including the further improvement of roads, the 
building of additional and more substantial bridges, as well as the opening 
of new roads both for lateral lines of communication and for additional or 
more direct supply lines, the only time limit being the general military 
requirement of doing all essential work as speedily as possible. Ordi¬ 
narily the work in the first two stages will be done by the field battalions, 
and the third by the base battalion and civilian labor, although much of 
the third-stage work also may be required to be done by the field bat¬ 
talions. The direction of the measures for the first and second stages will 
ordinarily be with the division engineers and for the third stage with the 
chief engineer on the staff of the commander of the base and lines of com¬ 
munication; although such a line of division is true only in. a very 
approximate way. 

As mentioned before, the division will ordinarily march on at least two 
roads, although, of course, in many cases it will have only one road, and, 
in fact, two divisions may have to use a single road. Where the division 
moves on two or more roads these will usually be sufficiently near together 
to permit the same bridge across an unfordable stream to be used by both 
columns; in fact, such roads will usually intersect at important stream 
crossings at a point where a bridge had been maintained in time of peace. 

Information as to the condition of roads and bridges will ordinarily be 
received by the division commander from the cavalry screen or from the 


17 


topographical party. This information will enable the chief of staff to 
embody in his order for the next day’s march instructions as to the proper 
disposition of the engineer troops and the bridge train. In special cases 
where there is little danger of hostile parties in rear of the cavalry screen, 
engineers may be sent forward to work on roads and bridges as soon as 
notice is received indicating the need of such work; and by working at 
night the engineers may have the roads and bridges ready by the time the 
advance guard arrives next day. In the ordinary case, however, an engi¬ 
neer company will be with the advance guard of the division, a half 
company being with the advan'ce guard of each column if the division is 
marching on two roads. Since the amount of damage that the enemy 
can do to the roads on his retreat will ordinarily consist only of destroyed 
culverts and obstructions on the road, the pioneer company with the 
advance guard can, as a rule, put the road in condition for passage of the 
division without delaying the column. When an unfordable stream is 
reached where the bridges have not been destroyed, but only damaged, 
they can usually be put in condition for passage of the troops without 
great delay to the column; but where the bridges are totally destroyed, 
the quickest method of crossing will usually be by the ponton bridge; 
and, in this case, from the information received by the division com¬ 
mander, instructions will have been included in the order for the day’s 
march for the bridge train to march directly in rear of the reserve of the 
advancfe guard. A sufficient number of engineers under an officer will be 
detailed from the engineer battalion, to act as pontoniers, to accompany 
the bridge train. These will construct the bridge, which can ordinarily 
be done with little or no delay to the main column. 

The bridge having been constructed and a detail made of engineer 
soldiers, under an officer to act as bridge guard and take charge of the 
crossing of the troops, the division engineer will make a detail of a suffi¬ 
cient number of officers and men from the engineer companies to collect 
available materials and begin the construction of an improvised bridge, in 
order to free the bridge equipage as soon as possible. This bridge may 
be a floating bridge, using boats found on the river, with the roadway of 
lumber from buildings, etc.; or it may be a pile or trestle bridge bpilt of 
materials at hand; or it may be a combination of the two; the skillful 
utilization of available resources being a mark of the successful military 
engineer. The traction engine of the bridge train will be available to 
operate the portable pile driver, which should be carried in the train; and 
the wagons and teams of the train can be used for the haulage of materials. 

As soon as the improvised bridge is completed, the ponton bridge will 
be taken up and reloaded, and the equipage will return to the division 


18 


trains. The engineer troops, except a small detail which it may be neces¬ 
sary to leave in charge of the bridge, will join their companies. 

In case the information received by the division commander indicates 
the need for additional ponton material he will communicate with-army 
headquarters, where orders will be issued providing for the combination 
of the bridge material of neighboring divisions or for extra ponton material 
to be sent from the army reserve trains* Equipage so borrowed will be 
returned as soon as no longer needed. The division bridge train will 
usually be increased by assigning to it complete ponton divisions, each 
accompanied by the engineer soldiers and the teamsters attached to it. 

The division engineer after the division has passed over the roads will 
make details of working parties to repair the worst places in the road, as 
at broken culverts, mud holes, rain gullies, etc., to put it in fair condition 
for the traffic along it as a supply line. Working parties for this work 
will be made up from the engineer companies and from civilian labor, 
and, if necessary, from troops of the line. An engineer officer will be 
assigned in charge of this work, and, if necessary, several officers will be 
so assigned, each having charge of the work on a section of the road. As 
soon as the designated work has been completed each detail will join its 
organization. 

The operations thus described will ordinarily complete the road and 
bridge work of the first two stages mentioned above; although more than 
one improvised bridge at each crossing may be required to be built before 
it is advisable to take up the ponton bridge; and further, where streams 
have been crossed by fording, it will be necessary, as a rule, to construct 
an improvised bridge, as most fords will be speedily destroyed by the 
passage of army trains. 

The general rule which should guide in the use of the bridge equipage 
is that it be used only \yhen no bridge of improvised material can be built 
in the time available; and that when a ponton bridge is built, it should 
be released as soon as possible by the construction of a bridge from 
improvised material. In case a body of troops is passing over a road 
which will not constitute part of its line of communications, the ponton 
bridge may be removed as soon as the troops have passed. 

The third stage of the road and bridge work, that is, the further 
improvement of roads and bridges along the lines of supply or the lateral 
communications, and the construction of new roads and bridges and the 
maintenance of same will ordinarily be in the province of the chief engi¬ 
neer officer on the staff of the base commander, who will utilize the 
engineers of the base battalion to do the work, although the larger part of 
the working parties may be composed of civilian labor, which can prob- 


19 


ably be obtained freely outside of the actual field of operations. When 
the advance of the army, or any part of the army is stopped for any 
reason, division engineers will utilize engineer troops not needed for other 
and more important duties to work back from the position occupied by 
the division and improve the roads or build additional bridges on its lines 
of supply; thus the base battalion and the field battalions will be working 
toward each other on roads and bridges connecting the advance base with 
the position occupied by the troops. 

For the third stage there will be available labor-saving machinery and 
also more suitable materials for bridges than can usually be found quickly 
for the improvised bridges mentioned above. Thus the roads will be 
metalled with gravel or broken stone or will have a top coating of sand 
or clay, whichever may be needed to improve the surface of the roads. 
Wheel and drag scrapers and road rollers will be at hand for use. The 
bridges will usually be substantial pile bridges, or, where more adaptable 
to the site, wooden truss, or suspension bridges. Generally it may be 
said that the longer a position is occupied the better should be the con¬ 
ditions of roads and bridges used by the army. 

Where an advance base has been established, the roads and bridges 
between it and the main base are not so important, as the advance base 
will usually be served by the railroad, but work on these should not be 
entirely neglected, as they may be needed in case the railroad is not equal 
to the demands on it or in case the railroad is cut by a raiding party of 
the enemy. 

A word might be said here as to the system of new roads needed in 
rear of a fortified position occupied by the army. Such a system will 
include a wide road 2 to 4 miles in rear of and paralleling the line occupied, 
near which road will be located the headquarters of the larger units, most 
of the reserves and the depots of ammunition, food supply, etc. From 
this should branch out, fan shaped, narrower roads connecting it with the 
supports behind the fortified line. In rear will be narrower roads con¬ 
necting the depots along the main road with the advanced base. Field 
railroads, as mentioned below, may be used to advantage in conjunction 
with this road system. 

In the Manchurian campaigns, the Russian engineer work on roads and 
bridges, particularly the former, was far better than that done by the 
Japanese. Captain Judson remarks that with the Russians there was 
always the greatest activity in road construction, of which he gives many 
examples; whereas Captain Morrison, as well as General Hamilton, of 
the British army, remark that apparently almost nothing was done by the 
Japanese to improve even the worst places in the roads, although it is 


20 


noted by another observer that there was a marked improvement in this 
respect after Mukden. Being on the defensive, the Russians did not find 
bridges destroyed, and therefore little bridge work was required, except 
that additional bridges were needed on the Taitzu and the Hun for the 
fortified positions of Liaoyang and Mukden. These were usually ponton 
or improvised floating bridges. 

The Japanese needed many bridges, and many of these, particularly at 
the crossing of the Yalu, had to be constructed under fire. The Japanese 
seldom used their bridge equipage, relying for floating bridges on the 
Chinese junks, which were quite numerous and well suited to the pur¬ 
pose, and for fixed bridges on material collected near by. Major Kuhn 
says that as bridge builders the Japanese displayed skill and adaptability 
in utilizing the scanty resources afforded by a country like Manchuria; 
but their work was characterized by deliberateness and slowness. Our 
own civil war affords far better lessons for bridge operations than does the 
Russo-Japanese war; although the superiority in lightness of the metal 
ponton over our wooden ponton was noted in the latter war and has been 
commented on above. 

Much more might be said on this subject, but it is believed that 
a general idea of this branch of the engineers’ work has been given, 
and further discussion would involve detail which would extend this 
essay into a treatise. 

PLANNING AND SUPERINTENDING OF DEFENSIVE OR 
OFFENSIVE WORKS OF TROOPS IN THE FIELD. 

As mentioned before, this division includes supervision of siege 
works, which will not be discussed here; and of the selection and for¬ 
tifying of positions in the field fof either offensive or defensive opera¬ 
tions. This latter constitutes one of the most important engineer 
duties, and one that has constantly increased in importance in pro¬ 
portion as weapons have increased in destructive power. Writers on 
the subject of field fortifications usually devote pages by way of intro¬ 
duction to prove the value of field fortifications; as well might they 
need to prove the necessity of breech-loading firearms. In the early 
days of fieldworks, they were used only by bodies of troops on the de¬ 
fensive and were always supervised or constructed by engineers. Now 
much of the work must be done by troops engaged with the battle 
lines of the enemy under such conditions that no supervision can be 
exercised except by the officers on the firing line, the object being to 
throw up as quickly as possible any kind of shelter to partially protect 


21 


the firing line; the development of such temporary protection into 
stronger works, however, will usually be directed and supervised by 
engineers. 

The classification of fieldworks into deliberate and hasty intrench- 
ments is well known and need not be explained here, nor is it neces¬ 
sary to mention that no exact line of demarkation can be drawn between 
the two. As to offensive and defensive operations, field fortifications 
are needed in both. While, strictly speaking, all intrenching is for 
defensive purposes, even though to be occupied only in the brief 
pauses made by an attacking force in its advance on the enemy’s posi¬ 
tion, it is usual to designate the skirmishers’ or lying-down trench as 
an offensive trench, since it is constructed only by the firing line and 
its supports and reserves in the successive positions held for a brief 
time in their rushes toward the enemy’s works. As an illustration of 
the use of the offensive trench: the Japanese method of attack where 
the ground offers no cover for the attacking force is for the line of 
skirmishers to move forward until forced to halt, then to lie down 
and protect themselves, usually with mere head cover, by digging and 
throwing earth to the front. A brief pause here, and the firing line 
makes another rush forward and the men protect themselves as before; 
while the supports move forward and occupy the first position and 
continue strengthening the cover; another advance puts the firing line 
into another skirmish trench, the supports into the next, and the re¬ 
serves into the first made; and so on until the enemy’s works have 
been rushed or the attack has been forced to stop; each line continuing 
the development of the trenches. Since the lying-down trench offers 
little protection against curved shrapnel fire, the successive trenches 
are as speedily as possible developed into the kneeling trench, which 
thus, in a measure, is both an offensive and defensive trench. 

It may be stated as a rule, that whenever an attacking force is 
forced to halt for any reason it protects itself by the skimisher’s trench, 
as it will usually be less costly to hold an advanced position than to 
withdraw, and that such a trench as soon as possible is converted into 
the kneeling type, or even a stronger profile. 

The above explains the use of the strictly offensive trench; hut in 
offensive moments every position held by the troops of the army acting 
on the offensive must be fortified, in view of possible counter attacks, 
thus permitting parts of the line to be lightly occupied while large 
bodies are concentrated at other points for attack on a particular part 
of the enemy’s line, or for a turning movement. The location of 
fortifications on such a line and the design and method of constructing 


22 


the works does not differ from the fortifying of a defensive position, 
the chief difference being that the army on the defensive has more 
freedom in the selection of the position to be occupied. The*duties 
of the engineers are the same in each case, and the methods outlined 
below apply to each. 

Taking up the defensive positions, we find the conditions under 
which they may have to be fortified varying from the hasty intrench¬ 
ing of a position under fire when the advance guard comes into contact 
with the enemy, deploys and engages the enemy until the army can 
come into position either on the line held by the advance guard or on 
favorable ground somewhat in rear, to that of the deliberate intrench¬ 
ing of positions remote from the enemy, selected after thorough con¬ 
sideration, the works being carefully laid out and being ordinarily 
constructed by civilian labor. The case most typically showing the 
functions of engineer troops in connection with field fortifications is 
that of the selection and intrenching of a defensive position not remote 
frpm the enemy, but yet not under fire; a case by way of illustration 
being the fortifying of the Hun River line by the Russians after the 
battle of Liaoyang. 

For the selection of such a position it is assumed that there will be 
fairly accurate maps. With these the army commander, aided by his 
chief engineer, will select the general position to be occupied, the 
sectors to be assigned to the different divisions, the positions of the 
army reserves, locations of division depots, and army reserves of ammu¬ 
nition and supplies, and all related matters. The conditions affecting 
the selection of the line are so various that it is out of the question 
to recite them here. In the Field Service Regulations as well as in 
the Engineer Field Manual and in the various works on field fortifi¬ 
cations are given the many points to be considered in the selection. 
If time is available an examination of the entire line may be made by 
the army chief engineer and also by the army commander before the 
line is finally decided on; but on account of the great extension of 
modern battle lines, time will usually not be available, and the posi¬ 
tion will be determined on from the map. 

The army commander having reached a decision as to the location, 
an order will be issued from armv headquarters designating the line, 
and assigning the various divisions to the sectors to be occupied by 
each, and stating the general method of fortifying to be pursued, the 
general form of instructions to the division commander being to 
occupy and fortify a position between certain designated points, as 
villages, hills, streams, or to occupy a line of heights between desig- 


23 


nated points, etc. Since between the sectors assigned to the different 
divisions there will sometimes be intervals not covered by any of the 
divisions, the army order will prescribe the method of patrolling the 
interval or the method of obstructing it, or make any other provisions 
for the intervals that mav be desirable. 

The division commander upon receipt of the order assigning the 
sector to be occupied by his division will, with his engineer officer, 
by the aid of the map and after a personal examination, which will 
usually be possible, decide on the position to be occupied and the 
character and location of the works to be constructed. He will 
issue an order designating the division reserves and the positions to 
be taken by them, assigning the brigades to different parts of the line 
and prescribing the size of the local reserves and their locations, the 
positions to be occupied by the divisional artillery, the location of 
the important fieldworks, their general character, and the obstructions 
to be constructed, etc. 

The division engineer thus selects or advises the selection of the 
location and type of fortifications to be constructed by his division, 
and as soon as this is done he will immediately take the necessary 
steps for executing the work. He will assign to each redoubt or 
other work an engineer officer and a sufficient detail of engineer non¬ 
commissioned officers and men, and will ask the chief of staff for the 
detail of the necessary working parties from the infantry, estimating 
the size of the working parties in accordance with the principles given 
in the Engineer Field Manual. He will cause to be sent from the 
section of engineer field park to each work the requisite number of 
tools and the materials required for splinter and bombproofs and for 
obstacles. 

Each engineer officer assigned in charge of a redoubt or other work 
will proceed to the site with his detail, carrying with him tapes, 
pickets, profiling strips and the tools assigned from the field park, 
if not sent there direct by the division engineer; and arriving at the 
site will trace out the work, erecting "profiles” if required, and sub¬ 
divide the work into individual tasks; cause the tools to be piled so 
that they can be readily distributed to the working parties as they 
come up; will assign engineer,soldiers to construct the framings for 
bombproofs, etc.; will assign engineer non-commissioned officers 
and privates as supervisors along the line of the crest; and, generally, 
will perform all the preliminary operations necessary before the arrival 
of the working parties—all of which is laid down in the Engineer 
Field Manual, and is somewhat out of place to be repeated here. It 


24 


is in the discretion of this officer, in tracing out the work ordered 
from division headquarters, to adjust the work to the site, although 
so far as possible the division engineer with the assistance of the most 
experienced officers of the engineer battalion should be present at the 
actual laying out of each important work and supervise same; thus, 
the captains of the battalion may each have the supervision of two or 
more adjacent works, with a lieutenant in charge of each, as .above. 

If the operations have been well timed, the laying out of the work 
and other preliminaries will be completed by the time of arrival of 
the first detail of the working party, and the tools will be handed out 
to the men by engineer soldiers as the troops pass between the 
piles of tools, and the engineer officer in charge will see to the distri¬ 
bution of the working party along the line of the work, giving his 
directions, or suggestions, if this term is preferable, to the officer in 
command of the troops. It is important that this officer shall fully 
cooperate with the engineer officer, and chiefly for this reason is it 
important also that the troops should belong to the same unit; that 
is, if a working party the size of a battalion should be needed, one 
battalion of a regiment commanded by its own major should be desig¬ 
nated. The working party should be properly posted and the task to 
be performed by each man should be understood before any work be¬ 
gins; which done, at a given signal, work begins, and each man (or 
where several men are working together, each party) as he completes 
his task, lays the shovel, or other tool, in position designated and 
may then fall out and wait for the detail to be marched off. The 
engineer officer and his assistants have the duty of seeing that the 
work is properly done, while'it is the duty of the company officers to 
look out for the quantity of work; in other words, to see that the 
tasks are completed in the time allotted. 

The working party should be from 10 to 20 per cent larger than 
the number required for the redoubt proper; these extra men assisting 
the engineer soldiers detailed to prepare obstacles and bombproofs. 

Upon completion of the task assigned to the first relief it will be 
marched back to camp; the second relief arriving at the time desig¬ 
nated, will take up the tools and begin the task assigned to it; and 
similarly for the third relief; engineer reliefs not being changed at 
the same time as those of the working parties. With the exception 
of works of very strong profile, the third relief will usually complete 
the task, except for the bombproofs, obstacles, and approaches, work 
on which may continue for several days, suitable working parties 
being detailed. 


25 


Where necessary, and it will usually be necessary, the infantry 
working parties may be required to bring up all the full size picks and 
shovels belonging to the regiment from which the detail is made, in 
which case the last detail on the work from each regiment will return 
the tools to camp. The engineer officers and men will be responsible 
for the engineer tools and will see that they are returned to the bat¬ 
talion or park trains, from whichever received. 

The trenches covering the ground between the redoubts, as well as 
those in front of the redoubts, and the trenches for the supports and 
reserves o^ the firing line, and the covered ways connecting the posi¬ 
tions of supports and reserves with the firing line, will be constructed 
in order of importance, following the construction of the redoubts; 
much of the work, particularly that on the trenches connecting the 
redoubts, will proceed simultaneously with the work on these. The 
divisiofi engineer will make details of engineer officers and men for 
the trenches, usually at the rate of an officer and fifteen to twenty 
men to each half mile of trench. The trench will be located and 
traced out by the engineer officer in the manner described above, ex¬ 
cept that no profiles are to be erected, and the location and construc¬ 
tion of splinter and bombproofs and obstacles will be postponed until 
the trench is completed. The work will be done by working parties 
from the infantry as above described, ordinarily in three reliefs. 
Tools, so far as possible, will be supplied from the engineer field park, 
but will have to be supplemented by the full size tools belonging to 
the regiments and frequently by the portable intrenching tools carried 
by the men. The portable intrenching tools used will be brought up 
and carried away by each company in the working party. 

The division engineer wiil also detail an engineer officer and a 
sufficient number of enlisted men to supervise the clearing of the fore¬ 
ground, and will give instructions to this officer. A working party 
will be obtained from the infantry, to whom tools will be issued from 
the battalion train. Any blasting operations required will be per¬ 
formed by engineer soldiers. In clearing the foreground, objects which 
do not screen the attacking force and will tend to delay or break up 
his formations should be left; but all screening objects should be re¬ 
moved. Much of the material obtained while clearing the foreground 
can frequently be utilized for hiding the trenches, for the construc¬ 
tion of obstacles, etc., and all materials not so needed will be burned, 
or otherwise disposed of. 

Since the artillery, in a position intrenched according to the most 
up-to-date methods, occupies retired positions hidden from the enerpy 


26 


by villages, hills, woods, etc., it will frequently be unnecessary to 
construct any protection for it; and if such is necessary, it will be 
constructed by the men of batteries with tools carried in the battery 
wagons. Of course, in the few cases where it is desirable to construct 
gun positions in or near the field redoubts, these will be constructed 
at the same time and in the same manner as for the redoubts. 

During the entire construction of the work of intrenching, the di¬ 
vision engineer, and any officers acting as his assistants in the matter, 
should exercise constant supervision over the work, to see that it is 
rapidly and properly executed. At the same time he will obtain data 
to enable him to locate and construct any additional works which may 
be required to complete the defenses of the position, some of which 
will always be needed, since the first plans, which would be some¬ 
what hastily prepared, could hardly be quite complete. He will, as 
soon as possible after consulting with and obtaining necessary author¬ 
ity from the division commander, proceed in the manner above de¬ 
scribed to the execution of these additional works. The army chief 
engineer will as far as possible in like manner inspect and supervise 
the intrenching work of the entire army; and generally every engineer 
officer who has supervision of fortification work will closely watch it 
to see that the work is rapidly and properly done, and when necessary 
will appeal to higher authority for the purpose of correcting any mat¬ 
ters for which his own authority is insufficient. Normally, however, 
the work will proceed without need for any such appeal. 

To complete the preparation of a position, a system of free com¬ 
munications in rear of the line will be necessary. Such a system, in 
order to reduce the labor required of the troops to a minimum, will 
utilize such of the existing roads as may be practicable, but new roads 
will be laid out and constructed where necessary to give a system of 
roads, including a main road practically paralleling the line and about 
2 miles in rear, along which road will be located the division head¬ 
quarters, division reserves and supply depots, with branch roads lead¬ 
ing from the positions of the depots to the advance base, and branch 
roads radiating to different parts of the front from the position of the 
division reserves. These roads, where possible, should be hidden by 
folds of the ground, woods, etc. Similarly, the positions of the re¬ 
serves of the brigades will have roads leading to different parts of the 
front, which in many cases will need to be sunken and traversed for 
protection. Positions of local reserves for the firing line are con¬ 
nected therewith by zigzagged or traversed covered ways. General 
directions for this system of communications will be embodied in the 


27 


before-mentioned army order; and they will be laid out and constructed 
under the supervision of the chief engineers of the divisions, each for 
the work in rear of his sector. Engineer officers and men will be de¬ 
tailed to different sections of the roads to be constructed, working 
parties will be obtained from the line, and the work conducted in a 
similar manner to that on the intrenchments. Details of engineer 
troops will construct the necessarv bridges, and it may frequently be 
possible to obtain civilian labor for much of the road work. Upon 
completion of the roads and covered ways, signboards will be erected 
at all crossings and forks so that there will be no opportunity to mis¬ 
take the roads. 

The work of fortifying the position will now be more or less com¬ 
plete, but it remains for the division engineers to locate splinter and 
bombproofs for the trenches, and to supply materials needed and make 
necessary provisions for their construction. Obstacles in front of 
those parts of the line from which it is expected to make no offensive 
move may be multiplied to advantage, and the division engineer will 
take necessary steps to do this. 

The above gives in a rough manner the method of selecting and 
fortifying a defensive position by the labor of the troops not under 
fire of the enemy. In case the position has to be taken up and in¬ 
trenched under distant fire, the supervision of the engineers will be 
confined to construction of the redoubts and other important individual 
works, the trenches being traced by the company officers of the in¬ 
fantry and constructed with the portable intrenching tool. The 
method of laying out and constructing the redoubts will be that before 
explained, except that the tracing of the work will be much more 
hastily done, omitting the construction of profiles, and the work will 
be so conducted that the redoubt will be defensible at all stages of the 
construction. Working parties will bring up their rifles and ammu¬ 
nition belts, which they will remove and lay immediately in their 
rear while at work. Guards for the working parties may also be nec¬ 
essary. As soon as the position is intrenched, the division engineer 
will examine it and suggest any necessary changes in the location of 
the trenches, as well as additional works, obstacles, etc., needed, and 
under orders of the division commander will take steps to carry out 
such works. A general rule of importance is that as long as a posi¬ 
tion is occupied so long should work be carried on to add to its de¬ 
fensive strength. In this connection it may be remarked that the ad¬ 
vance line fortified by an army acting on the offensive is seldom 
selected, but is usually forced on the army commander by the condi- 


28 


tion of the combat. It will ordinarily run through important points 
taken from the enemy, and elsewhere as close to the enemy’s lines 
as it has been possible for the attacking troops to maintain them¬ 
selves. The intrenching of such a line will first be by hasty intrench- 
ments, constructed under close fire of the enemy and gradually ex¬ 
panded into works of stronger profile. Intrenchments captured from 
the enemy can, as a rule, be altered to form part of the line of de¬ 
fense. For this reason attacking parties should be closely followed 
by details of engineers with tools and materials needed to quickly 
alter the works captured from the enemy and to construct bombproofs 
in same. In addition to this duty of the engineers, they will also 
be present to assist in and supervise the further strengthening of the 
position, and, where the trench has been badly located, to select a 
position for.an additional trench either more advanced or retired, the 
old trench, however, not being abandoned, but serving as an additional 
defensive position. 

In rear of the main position of the army will be constructed a second 
line of defense and sometimes a third and fourth, depending on the 
probability of a retrograde movement. Such positions will be selected 
by the army commander, aided by his chief engineer, from maps or 
after a personal examination. The methods of intrenching these 
positions are so nearly the same as those already given that they will 
not be repeated. Much if not all of the work, will be done by civilian 
labor, supervised by details of officers and men from the reserve or base 
battalion of engineers, as may be most convenient, the entire charge 
of the work being ordinarily assigned to one of the engineer assistants 
to the army chief engineer. Since the army reserves will usually be 
posted near the second line of defense, working details may, if neces¬ 
sary, be obtained from these troops. Drag scrapers and other labor- 
saving devices will frequently be available for this work. 

To guard weak points on the lines of communications, as bridges, 
tunnels, etc., garrisons will be needed, and in order to reduce the size 
of these garrisons as much as possible, strong works will be con¬ 
structed for their protection. These will be planned and constructed 
under direction of the army chief engineer by an engineer officer 
specially detailed for this purpose, assisted by officers and men of the 
base or reserve battalion of engineers; working parties being from 
the garrisoning troops or of civilian labor. 

So far I have endeavored to outline the duties of the engineer in 
connection with field fortifications; but before leaving this subject, 


29 


it might be well to look into the question of the effect on the art of 
field fortifications of the lessons of the recent war. 

The reports of military observers on both sides indicate that this 
war has taught no lessons in regard to fortifications that have not 
already been embodied in recent text-books and manuals on field forti¬ 
fications. The experiences of this war, however, have emphasized 
many points, and some of these I will mention, since their importance 
is so great that it can not be too much urged, although these points 
come rather under the head of details of how the engineer is to do 
his work, instead of what work he is expected to do. 

The two most important points are concealment and dispersal. As 
to the first, the Japanese even in the beginning appreciated the value 
of concealment and the Russians rapidly learned the lesson. In this 
matter the teaching of the English-Boer war is quite as emphatic. 
To secure concealment, parapets should be low and flat; in fact, for 
trenches, they should be altogether omitted, if practicable, the trench 
being entirely in excavation; fresh earth not in parapet must be 
wasted where it can nbt be seen, and all fresh-earth slopes must be 
sodded, covered with hay, or otherwise made to look like surrounding 
areas. The Japanese, among the devices used for this purpose, planted 
rows of kaoliang in front of the parapet. In no case should works be on 
the sky line. Artillery almost habitually used indirect fire, firing over 
its infantry, and was posted in rear of and hidden by hills, villages, etc. 

The principle of dispersal requires the absence of local congested 
positions on the line, and hence redoubts are constructed for infantry 
and machine guns alone, the artillery being in retired positions where 
it can sweep the ground between and in front of the redoubts. The 
type of Japanese redoubt, and some of the Russian redoubts that 
seemed to be best designed, had long faces and short flanks, giving a 
target with little depth in the line of fire. Such a type permits a 
strong frontal fire and by the use of the machine gun can also bring 
to bear a strong fire from the flanks. 

The certainty of night attacks makes it necessary to protect the in¬ 
tervals between redoubts with almost continuous trenches; so that, 
with the flat redoubts and the trenches between, the fortified line be¬ 
comes practically a continuous infantry trench, with the batteries 
placed in concealed positions in the rear. 

The next point to mention is the necessity for covered approaches 
between the position of the firing line and that of the supports and 
reserves, and further, that these supports and reserves must be protected 
as well as the firing line, which, when possible, can best be done by 


30 


posting them on the steepest part of the reverse slope, and construct¬ 
ing splinterproofs or other protection if needed. Such covered ways 
and protections for reserves were habitually constructed by both the 
Russians and the Japanese. 

The necessity for resting the flanks of a position on impassable 
points, or, in their absence, for constructing strong intrenchments for 
the flanks, has long been known; and yet the Russians in their strong 
Sha River position seem to have neglected this matter, as their right 
flank lay in flat country only a short distance from the Hun, and it 
was not retired, and no fortifications were constructed to prevent the 
enveloping of this flank. Reliance seems to have been placed on the 
defensive strength of the many villages beyond the flank. With the 
flank refused, and strengthened with fortifications extending almost 
or quite to the Liao River, and with the foreground cleared by the 
destruction of villages, it is believed that Nogi’s turning movement 
could only have been made by allowing of such an extension of the 
Japanese line as to make it comparatively easy for a Russian advance 
to cut it in two. 

The extensive use of obstacles by both sides is worthy of note; the 
Russians using almost every type described in the text-books, many of 
which were thought to be more or less obsolete. But, as taught in 
our manuals, it seems that the most effective was the high wire en¬ 
tanglement, especially when made of barbed wire with the stakes well 
buried. It was further noted that the deep trous-de-loups were not 
especially effective and hardly paid for the great labor required for 
their construction; and that the military mine and fougasse, while 
doing little damage, were of considerable effect, due to the dread 
caused by them to the attacking force. In the attack on the eastern 
end of the Shoushanpu Ridge, the Japanese engineers were unable to 
find the wires leading to the mines, and ten of these were exploded 
in the attack. No one was hurt, yet the attacking force was demoral¬ 
ized and many started to flee and were rallied only with great effort. 
Well constructed abattis woven with wire was quite effective. Gen¬ 
erally the removal of the obstacles cost the lives of many of the 
attacking force. 

The importance of clearing the foreground is shown by the result 
of the failure of the Russians to remove the kaoliang and bean crops 
in front of the western face of the Shoushanpu position. The Jap¬ 
anese in large numbers concealed themselves in these fields within a 
few hundred paces of the Russian trench and kept this trench under 
continuous fire for forty-eight hours, which was possible only because 


31 


of the concealment given by the standing crops. The location of the 
trenches on this western face illustrates the advantages of a trench at 
the foot of instead of higher up the slope. The trench here was a 
long infantry trench running along the railroad and had covered ways 
leading to the villages in the rear occupied by the supports and reserves. 
This trench from its location was little disturbed by artillery fire; 
and, although the Japanese, due to the standing crops, were collected 
in large numbers only a few hundred paces away, all assaults were re¬ 
pulsed. The advantages of such a location are, that it gives a more 
sweeping fire over the foreground, and that the enemy’s artillery will 
have to cease fire, as his infantry advances, very much earlier than if 
the trench was higher up the slope; and further, a second trench 
higher up the slope in critical stages of the fight may be manned and 
thus permit the delivery of another tier of fire over the first line. The 
disadvantages' are its somewhat limited overlook of the foreground 
and, chiefly, the difficulty of reenforcing or withdrawing the troops; 
but this can be done with properly constructed covered ways. 

The redoubts on the hills forming this position were very flat and 
each was simply an infantry trench passing around the hill so as to 
form practically a closed work. The positions of the reserves were 
on the steepest of the reverse slopes and were protected by splinter- 
proofs. Guns were posted in rear of the hills and villages, and in 
some cases epaulments were constructed for caissons. All of these 
features were found desirable in the two days’ attack on this position, 
when it was subjected to an extraordinarily heavy artillery bombard¬ 
ment and an almost continuous infantry fire. This position was not 
taken by the Japanese. 

The importance of preparing villages for defense was illustrated in 
the Japanese turning movement at Mukden, where Russian forces de¬ 
fending villages were driven out only with great difficulty; and the 
Japanese were seldom driven out by the Russian counter attacks. The 
Japanese, immediately on pushing the Russians out of a village, 
caused their engineers to prepare it for defense. Such villages gave 
good protection against infantry fire and shrapnel, but were not proof 
against the high explosive shell. 

The experience of this war further shows that the deep and narrow 
trench gives far better protection against shrapnel fire than the wide 
and shallow type. In fact, against curved shrapnel fire, the lying- 
down type is practically useless. However, the deep and narrow type 
is better suited to a passive than to an active defense, although pro¬ 
vision can easily be made to remedy this defect of the deep trench. 


32 


Both the Japanese and Russians used head cover in practically all of 
their trenches; these were made of sods, sand bags, etc., and even of 
piles of mud. The importance of head cover is especially urged by 
General Hamilton, who not only was present with Kuroki’s army, 
but had much experience in the Boer war. 

For overhead cover, the ordinary splinterproofs gave protection 
against shrapnel, but for the high explosive shell much stronger over¬ 
head cover is necessary. 

Captain Reichman remarks: "It maybe truly said of the Russians, 
and probably of the Japanese also, that when they did not march they 
dug;” and with this I close this section of the subject. 

REMOVING OBSTACLES. 

The removing of military obstacles is ordinarily classed with demo¬ 
litions, as, in fact, it is a branch of that subject. However, since it 
is so closely related to the subject of field fortifications, I have taken 
up the matter here. Before a position can be assaulted passages must 
be made through or over the military obstacles protecting the trenches; 
and this work is the duty of the engineers. The Japanese custom 
was to detail engineers to precede the infantry line to cut wires and 
remove obstacles and such also will probably be the practice in our 
army. In performing this work the engineers in every sense of the 
word are combatant troops; and among the Japanese the losses of these 
parties of engineers were enormous; thus, in the attack on the 
western end of the Shoushanpu position eighty engineers cut the wire 
entanglement and engaged the Russians hand to.hand, and only ten 
of them were unhit. 

The division order for an attack will ordinarily specify the size of 
the engineer party to be attached to each attacking column; but if 
not, the division engineer will, upon notification of the proposed at¬ 
tack, make details of the necessary size, and instruct them where, when, 
and to whom to report, and specify what tools, etc., are to be carried. 
A preliminary reconnaissance, if possible, should be made by an en¬ 
gineer officer to examine the approach and to determine the character 
of the obstacles to be encountered. Such information may frequently 
be obtained with the telescope, or from the Signal Corps balloon, etc. 
The information as to the character of tjie obstacles will determine 
the preparation to be made by the engineers. Powerful wire cutters 
will always be required for cutting the wires of entanglements, abattis, 
etc., and the wires leading to the mines when they can be discovered. 
Explosives may be required to blow down palisades, destroy abattis, 


33 


chevaux-de-frise, etc.; axes also will be needed for this class of ob¬ 
stacles. To cross pits, light hurdles, doors, etc., may be carried to 
bridge these; or sacks of straw, etc., may be carried to fill them up; 
similarly, materials may be carried to fill up ditches. If possible, 
where wet ditches are formed by a dam, this will be discovered and 
cut by dynamite or shovels. As the details of engineers may be in¬ 
sufficient to prepare and carry large quantities of these materials, a 
detail of infantry from the attacking party should be asked for by the 
engineer officer to assist. The preliminary preparations having been 
made, the engineers and the men detailed to assist will precede the 
attacking line and under cover of its fire will make passages through 
or over the obstacles as wide as can be done in the limited time that 
it will be possible to carry on this work. 

The Japanese devised and used a light steel body protection to be 
carried by the wire cutter for protection while he worked. It might 
be advisable to try such a device in our service. Another device 
which is mentioned by Captain Judson was a light, portable ramp or 
bridge of bamboo poles and rope netting used by the Russians for 
crossing obstacles. This seems to take the place of and be much lighter 
than the old form of hurdle which is devised for the same purpose. 

DEMOLITIONS. 

The next branch of the subject is "Demolitions ,” under which 
head come the obstruction of roads and destruction of bridges, tunnels, 
etc., in rear of a retreating army, or by raiding parties, on the lines of 
communications of the enemy. For a retreating army the commander 
will give general instructions for the demolitions to be executed, and 
these will ordinarily include the destruction by fire or explosives of 
bridges and culverts; the sinking, burning, or carrying off of boats; 
the blowing in of tunnels; the destruction of railroads by tearing up 
the track, burning the ties and bending the rails; the destruction of 
railroad buildings and cars which can not be removed, as well as tele¬ 
graph lines; and the obstruction of roads by slashings or other devices. 
The instructions may also provide for the burning of villages and 
towns, particularly of any buildings useful to the enemy. 

In accordance with these general instructions, the division engineer 
officer of the division forming the rear guard will make necessary details 
of engineer officers and men to carry out the demolitions ordered, and will 
require them to report equipped with the necessary tools, explosives, 
etc. These details will include both foot and mounted engineers, the 
former to be attached to the reserve of the rear guard and the latter to 


34 


the rear party. The foot details, assisted if necessary by working 
parties from the reserve, will prepare the demolitions and obstructions, 
which will be completed by the mounted engineers at the last moment 
after all the troops have passed. 

Raiding parties against the enemy’s lines of communications will 
usually be composed of mounted troops only; and, although each 
troop of cavalry is provided with a pack demolition outfit, the raiding 
party should have attached mounted engineers specially equipped for 
demolitions, since the object of such a raid is to do the utmost dam¬ 
age possible to the enemy’s depots and lines of communications, and 
the time available will be short. The commander of the raid will 
give orders for the demolitions to be carried out, and may give the 
senior engineer officer entire charge of the work. It is especially de¬ 
sirable that the destruction of railroads and important bridges should 
be done under supervision of the engineer officer, as, in order to make 
the destruction as complete as possible in a short time, expert knowl¬ 
edge will be required. 

Methods for carrying out the demolitions mentioned, as well as 
other obstructions and damage to roads and bridges, are given in the 
Engineer Field Manual, and would be out of place for detailing here. 

LAYING OUT OF CAMPS. 

The conditions which a desirable camp site should fill are set forth 
in the Field Service Regulations as well as in the Engineer Field 
Manual. "On account of tactical considerations there will often be 
but little choice in selecting a site for a camp in time of war. When 
a great battle is impending, the troops may have to camp many nights 
on ground, which is objectionable from a sanitary point of view. 
However, when the enemy is more than two marches distant, it will 
nearly always be possible to give weight to sanitary considerations. 
When there are no tactical questions involved, and the camp is to be 
occupied for some time, a great responsibility rests upon the officers' 
selecting the site.’’ In the explanations here, it is this camp which 
will be considered. The duty of the engineer officer selecting the 
site is to locate the camp or subdivisions of the camp to fulfill as 
many as possible of the conditions requisite for a good camp site. 
Practically, the only sanitary condition which the engineer officer can 
not determine is the question of the quality of the water, and before 
the camp site is definitely settled this must be passed on by a medical 
officer. 

As in the fortifying of a position, orders from army headquarters 


35 


for formation of camps will be of the most general character, simply 
giving a general location for each division, leaving to the division 
commanders authority for the definite location of their commands. 

It will seldom happen that a single site will be sufficient for an entire 
division, so that the division camp will ordinarily consist of five or 
more subcamps; for example, one for each brigade, one for the cav¬ 
alry and artillery, and one for the engineer battalion and the Signal 
Corps. The division headquarters and the division hospitals may 
be camped with one of the brigades or may have a conveniently ac¬ 
cessible central location. The division engineer from the general 
map or from a reconnaissance sketch made specially for the purpose, 
or from a personal examination, selects the approximate location of 
each of the subcamps, and will send an experienced engineer officer 
with a sufficient detail of men to each of the proposed sites. A 
medical officer should be sent with each detail to examine the water 
proposed to be used and to make any other recommendations from a 
sanitary standpoint. Taking now each subcamp, the engineer officer 
detailed to lay it out will make a thorough examination of the pro¬ 
posed site and will ascertain from the medical officer his opinion as 
to the quality of the water. If the proposed site is unsatisfactory he 
will then examine an alternative site, which also should have been 
previously designated by the division engineer; otherwise he proceeds 
to the laying out of the camp. In the meantime, as soon as the de¬ 
tails to the different subcamps have been sent out, the division engi¬ 
neer and the division chief medical officer should visit and examine 
each of the sites, and if any is found unfavorable, he will cause the 
work of laying out to be discontinued and send the detail to an 
alternative site. 

The engineer officer charged with laying out each subcamp will lay 
out the camp as nearly according to the type form as practicable, fol¬ 
lowing the requirements of Field Service Regulations; will drive 
limiting stakes to show the position of each battalion, squadron, etc., 
and if practicable, of each company, troop and battery and each head¬ 
quarters, and of picket line, latrines, etc. He will then send a non¬ 
commissioned officer and several men to meet the troops as they arrive 
and show each larger unit the position of its camp. Where ample 
time has been available, as, for example, when the troops are simply 
shifting camp, it may be advisable to make a sketch or map of the 
camp as laid out, blue print this and send a copy to each unit. 

The engineer officer with this detail will then mark with signboards 
places for obtaining drinking water, for watering animals, for bathing 


36 


and for washing clothes. Where several units use the same stream 
for water supply, this matter will be controlled by the division engi¬ 
neer, or the senior division commander, if several divisions are in¬ 
terested. The engineer officer and his detail will then ascertain what 
new roads and bridges will be needed to facilitate communications in 
the camp and between it and the advanced depots, division head¬ 
quarters, the other subcamps, etc., and make report of same to the 
division engineer. 

This is practically all the work that can be done during a single 
day; but the division engineer will make daily details of officers and 
men from the engineer battalion to improve the necessary roads and 
bridges and to improve the water supply by installing the portable 
hand pumps which are (or should be) carried in the engineer com¬ 
pany tool wagons, and, if necessary, by digging wells. It may be 
advisable to utilize the traction engines for pumping water for certain 
or all of the subcamps. Working parties from the troops should be 
obtained where necessary to assist the engineer detail; but the divi¬ 
sion engineer should bear in mind that aside from necessary roads and 
bridges, the work to be done in this line should be kept at the 
minimum. 

If it is expected that the troops are to occupy the camp for a larger 
part of the winter, the division engineer will design huts for men and 
animals, first ascertaining what material can be obtained in the 
vicinity and making his design accordingly. Such material will 
usually be purchased and delivered by the Quartermaster’s Depart¬ 
ment, but much of it may be collected by engineer details using en¬ 
gineer transportation. Details of engineers will be made to show the 
troops how to construct the huts, and blue-print drawings showing 
the method of construction will be distributed, one or more to each 
company. So far as practicable, carpenters from the engineer com¬ 
panies will assist in the construction, and engineer tools will be sup¬ 
plied. 

The above roughly describes the formation of more or less perma¬ 
nent camps; but for the camps taken up for one or more nights by 
troops on the march, time will not be available to follow this method. 
From the map or the reconnaissance sketch, the division commander 
will designate the approximate position for the camp of each unit, the 
location depending chiefly on the proposed formation of the next 
column of march, unless near the enemy, in which case tactical con¬ 
siderations will govern. Each brigade, artillery, cavalry, and engi¬ 
neer commander will send out ahead, to the site selected, an officer 


37 


and a small detail, who will lay out the camp there to the best advan¬ 
tage and will meet and conduct the units to their proper locations. If 
practicable, an engineer officer and detail may be ordered to report to 
each brigade and other commander for this purpose, but ordinarily 
the brigade or other commander will send a member of his staff. 

In this connection, it might be said that it would be quite desirable 
if the Field Service Regulations explicitly defined the duty of the 
engineers with reference to selection of camps. 

RAILROADS. 

The only branch of the engineer duties in which our battalions have no 
instruction in time of peace is in the construction, repair and operation of 
railroads. Therefore, reliance for performance of this duty will be chiefly 
on volunteer railway troops recruited from railroad operatives, unless Con¬ 
gress should make provision for the organization of a regular railway bat¬ 
talion of engineers and for its training in time of peace. Such battalion 
need be in time of peace only of sufficient size to form a nucleus for a 
battalion, to be increased to war strength when necessary. The enlisted 
force of this battalion should be much better paid than any other branch 
of the engineers in order to encourage reenlistment of men who would 
otherwise take civil positions on railroad work; and there should be a 
large proportion of non-commissioned officers. In time of peace the 
officers would be detailed from the Corps of Engineers, and in expanding 
to war strength additional officers and men would be obtained from the 
railroad operatives. The peace training of this battalion should be in the 
location, construction and repair of standard gage military railroads and 
the light narrow gage, portable-track field railroads. A few of the officers 
and non-commissioned officers in order to obtain instruction in the opera¬ 
tion of railroads could be detailed for one or two years each to serve in the 
operative department of such of the railroad systems as would consent 
' thereto. 

In the absence of such action by Congress, some instruction may be 
obtained by the present engineer battalions by supplying for instruction 
purposes a complete portable steam field railway equipment. This would 
naturally be assigned to the battalion at Fort Leavenworth. Such instruc¬ 
tion, it is believed, would be of great value to officers and men. 

In whatever manner the railway troops are organized, each expeditionary 
army will have a battalion or corps of railway troops, composed of regular 
and volunteer engineers and with a force of civilian locomotive engineers, 
stokers, mechanics, telegraphers, laborers, etc., the size of the entire force 
depending on the number and length of the railroads to be repaired or 


38 


constructed and operated. The entire force will be under the chief of the 
railway service, who should preferably be a regular engineer officer, because 
of the relations which the railroad has to military affairs. This officer 
should have high rank, and by regulations will be on the staff of the com¬ 
mander of the base and line of communications. 

The railroad equipment to be supplied will depend on circumstances. 
Thus when the operations of the troops are to be conducted in a country 
without railroads, all tools, supplies and rolling stock will have to be sup¬ 
plied. An example from the recent war was the construction of the Seoul- 
Wiju railroad by the Japanese railway troops following the first army. 
Such railway material and rolling stock, etc., wilhbe of a lighter type than 
that usually used in civil practice. 

In the ordinary case there will be one or more railroads within the field 
of operations, and the railway material to be supplied will be for the pur¬ 
pose of putting these roads into repair, rolling stock also being needed. In 
all cases sufficient light field portable-track railway material and rolling 
stock should be supplied to connect the division depots, etc., with the 
main railroad. In the beginning of the operations of an expeditionary 
army it will usually be impracticable to supply railroad supplies and equip¬ 
ment at once, because of the insufficiency of the water transport; but the 
railway troops and the railway supplies, etc., should follow the first expe¬ 
dition as speedily as possible, and the bringing in of all supplies should 
continue as rapidly as possible, or until all that is needed is delivered. 

In the remarks above I have endeavored to roughly outline the question 
of the organization and equipment of the railway troops, but much detail, 
which of necessity is omitted here, can be found in the Engineer Field 
Manual. 

In almost all cases the line of advance of an expeditionary force will be 
from one or more bases on the seacoast or frontier along one or more 
existing railroads leading to the objective point. These railroads will be 
damaged by the retreating force. If the retreat has been precipitate, the 
damage will consist in the wrecking of bridges, culverts and tunnels, the 
carrying away, burning or wrecking of rolling stock, and the destruction 
of water tanks, stations and telegraph lines. A more deliberate demolition 
will include the destruction of track by burning of ties and twisting or 
carrying off of rails. Thus the work necessary to put the road in condi¬ 
tion may include new track and bridges throughout, with'turn-outs to pass 
destroyed tunnels; or, may be only to repair or reconstruct one or more 
spans of bridges and to supply rolling stock. 

As the army advances along a damaged railroad, the field battalions of 
engineers will do much of the work of reestablishing the railroad, particu- 


39 


larly in the repair of bridges and culverts, since these frequently can be 
repaired so as to be used for both highway and railroad traffic The chief 
engineer of the army will give necessary instructions for this preliminary 
work of putting the railroad in repair and will utilize details from the re¬ 
serve battalion of engineers and from the battalions attached to the divisions 
which are following the line of the railroad, and he may find it advisable 
to detail one of his assistants to have charge of this work. The work to 
be done by the field battalions is such repair work as may be useful for 
both the roads and railroad, and such as may be done without interfering 
with the other duties required of the field battalions. Whenever the army 
is halted in position, the details from the field battalions will work back 
along the line toward the base; and, in almost all cases of important rail¬ 
road bridges, the field battalions will continue their repair or reconstruction 
until relieved by details from the railway battalion. 

The railway battalion, under the direction of the chief of the railway 
service, will begin its work at the base and should use the utmost speed 
to keep the rail head as close behind the army as possible. The repair or 
construction work must be so done that the track as completed can be 
utilized for a supply line, while at the same time accommodating all nec¬ 
essary work trains. Where bridges across wide and important streams 
can not be completed in time, a temporary car transfer ferry may be in¬ 
stalled, to be used until the bridge is completed. As the railway troops 
advance along the road with the repair work, they will find much of the 
bridge work already started and some of it completed by the field bat¬ 
talions. Of course, as frequently mentioned before, as much of the labor 
as possible should be performed by civilian labor, and where the popula¬ 
tion is not hostile, such labor, both skilled and unskilled, can often be 
obtained in as large quantity as needed. Details from the base battalion 
of engineers if available can be obtained by order of the commander of the 
base. 

Where no railroads exist suitably located for a supply line for the army, 
a new railroad will be constructed, of the light military type, by the rail¬ 
way battalion, advancing the road as before from the base. Such a road 
will be located according to the principles laid down in the Engineer Field 
Manual. New railroads should be of standard gage, and old roads should be 
altered to standard gage so as to permit the use of rolling stock obtained 
from the United States. If rolling stock of another gage is available in 
large quantities, it may often be utilized by laying a third rail on the track. 

Besides superintending the repair and construction work the chief of 
the railway service will make timely calls on the home authorities (the 
Chief of Engineers, United States Army) for rolling stock, track and 


40 


bridge material, etc.; and he will also be in charge of the operation of the 
road, acting as general manager. The senior officers of the railway troops 
will be assigned in charge of the different departments of railroad work, 
as chief engineer, division superintendents and engineers, traffic managers, 
etc., and the subordinate officers and non-commissioned officers to the 
various subordinate railroad positions. In a w r ord, every possible effort 
must be made to so assign officers and men that each will be in the position 
for which his railroad experience best qualifies him without becoming 
subordinate to a junior or in authority over a senior in the military 
service. If care is taken in the organization of the railway troops, rank 
will be given in accordance with this principle. 

While the operation of the railroad will thus be under the Engineer 
Department, the assignment of cars and trains to the carrying of troops, 
supplies, etc., will be controlled by the Quartermaster’s Department; 
and the quartermaster on the staff of the base commander should be con¬ 
stantly in touch with the chief of the railway service, in order to keep 
informed as to the exact number of cars available, of course excluding 
work trains. Thus the quartermaster charged with this matter at each 
end of the line will be supplied daily, or oftener, if necessary, by the 
proper officer of the railway service with a memorandum showing the 
number and class of cars available for movement toward the front or rear. 
This memorandum will be used by the quartermaster in assigning troops 
to the troop trains and in loading the freight cars. The proper officials 
of the railway service will see to the making up and movement of the 
loaded trains. In other words, the relations between the Quartermaster’s 
Department and the railroad service is practically the same as in time of 
peace. 

As mentioned before, light steam field railroads and rolling stock should 
be provided to connect the main railroad with the division supply depots. 
These should be 24 or 30-inch gage, the track being of very light rails 
made up into portable sections. The engines and cars should be of very 
light type, the cars where necessary being drawn by mules walking beside 
the track. Near the rail head of the main railroad will ordinarily be 
established an advance base or supply depot, and it is from this base that 
the field railways are laid. When a new advance base is established 
further forward along the line, the field railways will ordinarily be taken 
up and moved accordingly. 

The track material, cars, etc., for these railways will be shipped to the 
advance base on the main railroad, and will be laid and operated by the 
base battalion of engineers, or by details from the field battalions of the 
divisions using these railways. One or more engineer officers, usually 


41 


from the base battalion, will be in charge of each separate line, and will 
operate it. Sometimes it may be advisable for the construction and opera¬ 
tion of these roads to be altogether under the chief of the railway service 
or one of his assistants. 

Nothing further need be said on the subject of railways, except to call 
attention to their great importance to the supply lines of the army, being 
almost a necessity for very long lines. The chief of the railway service 
has the opportunity of proving himself one of the most valuable officers 
in the army. In the Manchurian campaign the Japanese showed great 
lack of ability in the repair and operation of the Chinese-Russian railway; 
whereas the operation of the railroad by the Russians showed most excel¬ 
lent management; and while the Japanese in many lines offer us models 
for wise imitation, for the railroad service the Russian achievements will 
be difficult to surpass by American engineers. 

CONCLUSION. 

In the discussion above I have mentioned and in some detail explained 
the duties required of engineers with an expeditionary army ; however, 
there are many other special pieces of work requiring technical knowledge 
which will naturally fall to the duty of the engineers. Thus, it will be 
seen, the work properly falling to the engineers is far more than can be 
completely accomplished. 

Of the Japanese, Major Kuhn remarks that “The principal duties of 
engineer troops with the field armies during the war were limited to bridge 
building, road construction, building redoubts, and demolitions, and these 
kept them reasonably busy.” While from the experience of Captain 
Judson with the Russian army,he is of the opinion that “it is not possible 
to expect that engineer troops will or should be provided in sufficient 
numbers for more than the following functions: 1. Ponton work ; 2. 
Sapping and mining, and a limited amount of pioneer work ; 3. A limited 
amount of the more difficult bridge building ; 4. Directing the labor of 
other troops and civilians in intrenching, construction of obstacles, road 
and bridge work, railroad repair, and in the very many and great emergen¬ 
cies which are continually arising requiring the work of skilled labor or 
the intelligent handling of common labor in large quantities.” 

These remarks, as well as a contemplation of the work required of 
engineer troops, show that the work can never be completely done. 
Where large numbers of troops are maneuvering, even in time of peace, 
all engineer troops that can be obtained will always find useful work to 
be done; and in campaigns, the best that the engineers can expect to do 
will be to accomplish first the essential work and then to undertake as 


42 


rapidly as possible the other important work in the order of importance, 
and above all to be constantly engaged on work useful to the army, 
utilizing to the full all facilities that can be found in the field, and ,t;hen 
they may merit the commendation given by Captain Reichman to the 
Russian engineers of Kuropatkin’s army: “The Sappers greatly dis¬ 
tinguished themselves by the quantity and quality of their work. Officers 
and men were a fine body of troops, to whom the army is greatly indebted 
for their indefatigable zeal, thoroughness and resourcefulness.” 


/ 


NUMBER 33 

OCCASIONAL PAPERS 

ENGINEER SCHOOL 

UNITED.STATES ARMY 


Notes on Field Engineering 
from the Diary of An Engineer 


t 

TRANSLATION FROM THE RUSSIAN IN 
THE MILITARY INFORMATION DIVISION 
GENERAL STAFF 


WASHINGTON BARRACKS, D. C. 
PRESS OF THE ENGINEER SCHOOL 
1908 































* 












l. ■ 


\ 




4 









NUMBER 33 

OCCASIONAL PAPERS 

Wo, ENGINEER SCHOOL 

UNITED STATES ARMY 


Notes on Field Engineering 
from the Diary of An Engineer 


TRANSLATION FROM THE RUSSIAN IN 
THE MILITARY INFORMATION DIVISION 
GENERAL STAFF 



*»» 


WASHING I ON BARRACKS, D. C. 

PRESS OF THE ENGINEER SCHOOL 

1908 

























- • 







6 1300 






C fc 
« C f 







(^C‘ P* / b/v/j 




Notes on Field Engineering from the 
Diary of An Engineer. 

During the defense of Port Arthur there was work not only on the forts 
and other permanent buildings, but also in the immense constructing, recon¬ 
structing, and repairing of the field intrenchments and fortifications of various 
types. Consequently, besides illustrating a number of matters with regard 
to permanent fortifications, the conditions of the campaign have thrown 
light on the various forms of field fortifications and on those deficiencies 
which are to be supplied by field fortifications and intrenchments, in order 
to give to the troops the necessary support. 

I. CONSTRUCTION OF TRENCHES FOR RIFLEMEN. 

Trenches must be constructed in such a way as to give to the rifleman 
the best view and the best range, while, at the same time, protecting him 
from shrapnel and also, if possible, from rifle fire. Very few are the 
chances for reaching with a shell an individual rifleman in a trench. 
Therefore, the main concern is to take steps against shrapnel and rifle 
bullet. 

Several times during the campaign it was noticed that riflemen could 
not stand artillery fire and would leave the trenches. This, however, was 
brought about by one of the following two causes: (1) the trench was 
under the fire of large-caliber guns that were literally destroying the 
trench, and (2) the trenches were not constructed adequately in the engi¬ 
neering sense. Both causes had exactly the same effect, because, when a 
big shell destroys the breastwork and fills up the ditch, then the rifleman, 
finding here no protection from enemy’s shrapnel and bullets, will seek 
it in some other place. In the same way, when a rifleman is stationed 
in a poorly constructed trench, without blindages or traverses, he will not 
fire with calmness; he will lack self-confidence and steadiness. On the 
other hand, when a trench is constructed in a proper way—that is, when 
it is well adjusted to the locality, skillfully masked, furnished with indis¬ 
pensable protection from front and flank fire, then the riflemen will 
defend such a trench calmly and cheerfully to the last. All this seems 
but an elementary thing, quite simple and generally known ; yet actual 


2 

experience unfortunately convinces us that, at times, this elementary truth 
is entirely neglected. 

Every trench constructed on a position must satisfy the following 
conditions: 

(1) Enable a rifleman to fire with ease; 

(2) Protect him from enemy’s shrapnel and bullets; 

(3) Cover him from flank fire and from splinters; 

(4) Afford him concealment from the front; 

(5) Render practicable communication along the trench, without 
interfering with fire, and 

(6) Be provided with' ways of communication with adjacent trenches 
and with the reserve. 

The first condition can be met by making the trench deep enough to 
permit firing in a standing position, while enabling the rifleman to lean 
against the parapet and support himself on an elbow ledge (elbow ledge, 
a small ledge in the interior slope of the parapet, at the height of rifle¬ 
man’s elbow). The second is satisfied by constructing in the trench 
loopholes and loophole covers and by making the walls of the trench 
vertical (loophole cover, a light blindage over a loophole). The third 
condition is fully satisfied by constructing traverses of sand bags or other 
material at hand. The fourth condition is met by masking and by redu¬ 
cing the height and thickness of breastworks. Occasionally, it is con¬ 
venient to do without breastworks, by laying the parapet sand bags directly 
on the ground, with a little earth in front. For the fifth condition it 
would suffice to construct a step for the rifleman and to widen the trench 
below to 1 or 2 feet. A part of a trench in front of the Fort No. Ill 
in Port Arthur may serve as illustration ; the profile of this trench is given 
in Fig. 1 (rugged ground). 

For some time there have been many of the opinion that the trenches 
should not be made with breastworks above the natural level of the 
ground, that a trench should consist merely of a ditch and a loophole 
parapet made of sand bags laid on the edge of the ditch. My personal 
opinion is, that this is a wrong and somewhat exaggerated view, not 
always practicable and useful. It would be more correct to regard the 
height of parapet as varying between 0 and + 4%, in adjustment to cir¬ 
cumstances, targets, and locality. Of course, if, under the surrounding 
conditions, a trench without a raised parapet gives satisfactory range of 
sight and fire for the locality lying in front, and if the soil can be deepened 
to any desirable extent, then it would be proper to construct the trench 
in that way. However, when the soil is somewhat hard, or when a 
breastwork may substantially increase the range of fire and decrease the 


3 


dead space in front of the trench, then the breastwork should be con¬ 
structed above the natural level, even tho interfering with masking. 

Men should not be tired with labor in a hard soil, especially before a 
fight, when the same object can be reached by some other easier means. 
The following incident may serve as an example: 

During the fortification work made in the winter of 1904 on the 
Lingchau position (Nanshan), on the left flank was found a very hard 
soil, almost a solid rock, covered with soft earth only to a depth of x /i 
foot. And yet, notwithstanding that fact, it was necessary to hasten with 
the works on that flank on account of their special importance. As it 
was impossible to do quick work in that soil with the tools at hand and 
without explosives, we decided to construct at that point a trench above 

Sections or Trenches. PortArthur andKingchau 

Fig. i Pi g 3 



Fig. 2 


the natural level, covering the interior walls with sand bags. The earth 
had to be dug on the cultivated fields surrounding the position and was 
brought to the place on handbarrows. At first the profile of the trench 
had the form shown in Fig. 2. Later on the ditch was made wider and 
was deepened by 1 foot; the exterior slope of the breastwork was made 
very gradual, there were made loopholes, a great number of blindages for 
splinters, and, along the whole line of fire, head cover over loopholes for 
protection against shrapnel. During the day the rifleman was to stand on 
the lower step and fire thru a loophole. At night the boards were to be 
taken off and riflemen were to stand on a ledge 1% feet high and fire 
over the breastwork. (See Fig. 3.) The result was excellent, for, notwith¬ 
standing a terrible fire of the enemy, the company occupying that section 
during the whole fight on May 13 (May 26, new style) had only one 
wounded and none killed. 





4 


The preceding refers to field engagements. Fortress warfare is a dif¬ 
ferent matter. Wherever large-caliber guns can be employed against the 
trenches, it is necessary to dig into the earth as deep as possible. Under 
such conditions the larger range of fire must sometimes be sacrificed and 
dead space must be left for the sake of making the trench less visible and 
less destructible. Yet in such cases the parts of a trench should be com¬ 
bined so as to reduce the dead space in front of the trench as much as 
practicable. 

As an example in this case may serve a section of our second-line 



defenses of Port Arthur on the Mitrofaniev Hill. That defense was pro¬ 
vided for stopping the enemy, in case he would force his way between 
the Forts Nos. II and III and capture our first line. The very purpose 
for which the second line was built limited the range of fire to 300 or 
400 paces and made it imperative that there should be not a bit of dead 
space. Eleven-inch shells were fired at that line. Consequently, that 
section was made of deep trenches (in rock) and of a small breastwork 
1 Y?. feet high, and dead space was avoided by a convenient combination 
of ditches. (See Fig. 4.) 

In Port Arthur, in front of Fort No. Ill, a trench for a company was 
constructed as early as in June. It was provided with traverses to pro¬ 
tect from the fire of Ugloviya Mountains (Angular Mountains),* but no 
blindages were provided, as we were not to occupy the trench immediately. 

In September, after the capture of the Aqueduct and the Temple 
redoubts, we found it imperative to defend with stubborn resistance the 
access to the Fort No. III. Then the trench constructed earlier proved 


* 174-meter hill. 




5 



also of great value. It was completed in two nights in a quite original 
way. It must be observed that during three months the grass had time 
enough to cover the breastwork so well that it was masked excellently. 
The breastwork was of earth 2% feet high and 7 feet thick. The soil 
was soft. This circumstance made it practicable to cut in the breastwork 
for each man a separate place protected on the sides with sand bags and 
provided with head cover. The distance between the positions of the 
men was 2>% paces (9 feet). (See Fig. 6.) 

Every rifleman would fit his place for himself, preparing it so as to be 
protected from every side, to have a good outlook in front, and to have 
all needed things at hand. For that purpose a small cave was made in 
the wall at the bottom of the ditch for keeping a supply of cartridges, 
bread, and preserves. A small bank of earth was made to render the 
firing more convenient. Such arrangement of the trench gave the best 
results. 

That trench was 800 to 900 paces in advance of the front. It was not 


Fig 5. 


I-5-' 



Fi G . 6 


+ 3 ’ 




F iG.S. 


connected with other trenches, its communication with the front was very 
difficult, it had very little support from other sections, and yet, notwith¬ 
standing all that, it managed to hold out almost a month. 1 he length of 
company section, with a company of 200 riflemen, in this case amounted 
to about 700 paces. (Russian pace = 28".) 

As concerns the size of the individual parts of trenches, we may take, 
as example, the trench work of Kingchau position. (See Fig. 7.) 

Breastworks of such trenches were not destroyed by field-gun shells. 
Yet, for the sake of more effective masking, the exterior slope should 







6 


have had an inclination not of 2 on 3, but of 1 on 2 T and even of 1 on 3. 
When intrenchments are made ahead of time, it is very convenient to 
sow grass on the breastworks. 

Trenches for firing in a lying position should no longer be constructed 
according to their former type, as shown in Fig. 8. It is more convenient 
to make the ditch of the same depth, but narrower; the rifleman will 
have to lie on his side, but he will be more effectively protected. (See 

Fig. 9.) 


FiG.10. 



The profile shown in Fig. 5 proved to be convenient for firing in a 
kneeling position. Such a profile would be used only in the case when 
time is too limited to permit construction of a full profile for firing in a 
standing position; and, very likely, there would not be enough time to 
provide such a trench with loopholes. Therefore, to protect the rifleman 
more effectively, the line of fire should be made not straight, but wavy— 
that is* the front line should be made as shown in Fig. 10. Such a front 
line will partly serve as a substitute for loopholes, will mask the trench 
well, and will not require much time for construction. The Japanese 
trenches constructed in that way were hardly noticeable. 

II. DISTRIBUTION OF TRENCHES IN A POSITION. 

The question about the best arrangement of trenches in a position, both 
with regard to one general trench and to the individual sections, should 
be solved in the following way : Firing lines should be distributed in 
trenches by companies, but company sections should maintain among 
themselves a close connection, which can be brought about only by pro¬ 
viding a concealed communication. Then the plan of intrenchments 
presents itself as shown in the diagram of Fig. 11. 





7 


Construction of one general trench for the firing line has this valuable 
advantage, that the companies would be able to communicate among 
themselves very quickly (see Fig. 12), as it takes less time to pass the 
section u m than to go first thru the various passes and then thru the 
general trench of communication. But, on the other hand, when a com¬ 
pany occupies a separate independent section, then the commander of the 
company has an easier task in controlling it, preserving order, and keeping 
all his men in the proper places. Moreover, should the enemy, even in 
small numbers, succeed in forcing his way into a continuous trench, a 
panic might ensue, with the result that the companies would run to the 
right and left, mixing with each other. This could not happen in sec¬ 
tional trenches. Besides, in constructing and occupying continuous 
trenches, it would be necessary, with regard to the unoccupied spaces 
between the companies, either to fill those spaces with sectional reserves 
or to distribute the riflemen not 3 paces, but, maybe, as many as 10 paces 
from one another. In this way we shall either deprive ourselves of 



necessary reserves at the very start, or else make the firing line so thin 
that it will not be able to develop a strong concentrated fire. Either of 
these circumstances would be inconvenient. Consequently, preference 
must be given to separate company trenches connected by communica¬ 
tion trenches and passes. It is well understood that the best system for 
stubborn defense of a position would be to construct a continuous line of 
defense to preclude the possibility of the enemy's forcing his way thru 
the line, which is possible in the case of a line with intervals. But such 





8 


a system would demand an enormous quantity of troops, because to make 
the defense stubborn and hopeful we must have: 

(1) Adequate security service; 

(2) A thick line of riflemen; 

(3) Sectional reserves, and 

(4) General reserve. 

The Kingchau position was strengthened with continuous rows of 
trench work, sometimes even of two or three tiers, but the firing line was 
thin, there were no sectional reserves, and the general reserve gave no 
help, so the position was taken. At the foot of the Volchyi Heights 
(Wolf Heights) a general trench was constructed and was occupied by 
sections. On June 17 (June 30, new style) the Japanese managed to get 
secretly into our own trench side by side with the companies of the 
13th Regiment. We had to retreat at once. 

As to the intervals between the sections of the trenches, their size 
depends upon (1) the strength of the firing line and (2) locality. However, 
it seems that the intervals between company trenches should not exceed 
200 to 300 paces—that is, each of them should occupy almost one-half 
as much space as a company section. 

The distance between the communication trench and the company 
trenches must depend upon the locality ; yet the communication trench 
should be made at such a distance as not to be affected by shrapnel fire 
directed at the company trenches; in other words, the distance should be 
not below 400 to 600 paces. This feature is of special importance in 
case the communication trench is, besides its direct object, to serve also 
as the second tier of defense.. 

According to observations, it would appear that the dangerous effect of 
shrapnel does not extend beyond 100 paces from the place of bursting. 
But in this connection I must mention our test firing on the Kingchau 
position on March 4 (March 17, new style), 1904, when the position was 
being fortified. 

I quote from my diary : 

“On March 4 (March 17, new style) practical-fire tests were made 
from two light interrupted-screw guns. For that purpose twenty-five 
belt targets were placed in the lower trench at the barracks, 3 paces from 
one another and at a distance of 1 Yz paces from the interior crest of the 
trench ; and, behind those targets, at a distance of 200 paces, twenty head 
targets were placed in a similar trench with similar intervals from one 
another. The targets were clearly visible. The distance was 825 sazhens 
(5,775 English feet). Six shells and thirty shrapnel were discharged. 
The result of the fire: (1) Three shells hit the breastwork without any 


9 


bad effect; (2) one target of the line hit in the chest by an aimed projec¬ 
tile, and (3) sixteen targets in the line and twenty-one in the reserve hit 
by shrapnel bullets. Such a high percentage of hits can be explained: 
(1) by the precision of fire in modern artillery; (2) by the fact that the 
targets were not close to the breastwork, as they had been placed at the 
distance of 1/4 paces from the interior crest, and, consequently, were 
clearly visible, being exposed to the trajectory to 1 on 6, and thus they were 
affected by fire; (3) by the fact that the reserve was too close to, and directly 
behind, the line of fire. 

The tests have shown that: (1) the reserve should be kept at a dis¬ 
tance of not less than 400 to 600 paces, and it would be better to station 


Fig. 13. 



the reserve not directly behind , but to the side of the firing line; (2) a 
rifleman who keeps close to the breastwork can hardly be reached by 
fire; (3) destructive effect of field shells on trenches is of little account. 
Thus, taking into consideration this test and the above-mentioned ex¬ 
perience from actual warfare, we may accept 400 paces as an appropriate 
distance between the firing line and the trench of communication. 

In adjusting the trench of communication to the locality, we should, 
before all, have the trench constructed in such a way that the flank fire 
should not affect it, as the construction of numerous traverses would 
interfere with a quick movement of reserves and with the carrying of the 
wounded within the trench. 

As a good illustration of advantages presented by having the firing 
trenches divided into separate company sections and combined with a 
communication trench situated behind them, may be mentioned our part 



10 


of the Chinese Wall at Port Arthur, an earthen rampart, from 4 to 9 feet 
high, connected by communication passes with fortifications extending 
toward the front (open caponieres Nos. 2 and 3); these in reality presented 
only riflemen’s trenches protected with blindages. They fell only in 
October. (See Fig. 13.) 


III. BLINDAGES. 

As has been stated above, a well-equipped trench should have an 
adequate number of blindages protecting from splinters and shrapnel 


Fig. 14. 



w/ 


bullets, and also some number of shell-proof blindages protecting against 
precise fire of field guns. However, the experience of the present war 
demonstrates the prominent part played in the field engagements by 
heavy-caliber guns, and one may expect that in future wars the belligerents 
will not be satisfied with the present field material and will supplement 
it by carrying with the field army some number of long-range guns, at 
least of a caliber equal to 120 or 125 mm. Transportation of 6-inch 
(150 mm.) guns is considerably harder. Consequently, blindages should 
be adapted for protection against 120-mm. guns, and later on, in case of 
necessity, they may be strengthened. I may mention here the blindages 
of the Kingchau position (Fig. 14), as a tested model of blindages. They 
were made of one row of 12 by 15-inch planks tied among themselves with 
staples; tin sheets were laid on them, to prevent the earth from falling thru 
between the >lan s, while on ti e top was a layer, 3 Yt, to 5 feet thick, 
made of soil and clay mixt in equal parts. None of these blindages has 
been pierced or destroyed by projectiles of field guns or 120-mm. guns of 
the enemy. 












11 


When such a blindage would be hit by a projectile, the result was 
some shaking and a funnel-like hole in the earth layer % to foot 
deep, with a diameter of 1 to 2 feet; in case of a 120-mm. projectile, the 
hole would be nearly 2/4 feet deep and have a diameter not exceeding 4 
feet. 

The question—should the planking be tied with staples—constitutes 
quite an interesting subject. 

In the Fort No. Ill a blindage was constructed for protection of a 
machine gun. It consisted of two supports, of cap sills, of the planking 
made of 9-inch beams, and of a layer of. earth about 2/4 feet thick. The 
beams were tied weakly to the cap sills with staples. On August 8 
(August 21, new style) a 6-inch shell hit that blindage, pushed forward 
one beam fastened with staples and came thru. The question is, whether 
the shell would not break thru just the same, if the beams had been tied 
more strongly? My opinion is, that the staples are of no special import¬ 



ance in this matter. Everything depends on the thickness of the layer, 
while the staples serve to prevent strong shaking. 

Blindage covers for shrapnel were constructed as follows : Two piles 

were driven into the breastwork one -* below the line of fire; 

planks }4 to 2 inches thick were laid on their top (the whole width amount¬ 
ing to 18 inches), and the planks were covered with a 3-inch earth 
layer. The thickness of the layer should not exceed 3 inches, as greater 
thickness would increase considerably the weight of the blindage, without 


* Apparently a word omitted in the text.—Note of the translator. 






















12 


increasing its usefulness, and, in case of breaking down, the blindage 
might smother the men. In some cases no layers were made , the planks 
were kept at the bottom of the trench , and would be laid on the piles at the 
beginning of the battle , and left there without any layers. 

Besides the blindages of the model shown in Fig. 14, other models 
were constructed ; they are shown in Figs. 15, 16, 17, 18, 19, and 20. 

The blindage shown in Fig. 19 consisted of a row of beams 9 inches 
thick, of two rows of rails, and of a 2-foot layer of earth. A 6-inch 
shell, striking it, destroyed it completely, bending at the same time the 
rails into a knot. The blindage shown in Fig. 20, consisting of two rows 
of beams, 12 inches and 8. inches thick, and of an earth layer 1/4 feet 
thick was destroyed by a field-gun shell falling upon it. Some beams 
were destroyed, others thrown around. The blindage shown in Fig. 17 
was protected by a mountain in front of it; it had not been struck by 
any projectile. The covering blindage shown in Fig. 16 was very good 
as protection from projectiles, but it was too narrow. It was not struck 
by any projectile, altho it was built on a trench. The blindages of the 
types shown in Figs. 15 and 16 were not destroyed by field shells and 
120-mm. projectiles, but could not stand 6-inch shells, tho the earth 
layers were 3 feet thick. For this reason the earth layer was increased 
by 1J4-foot layer of stones, and on the top were laid sheets of soft steel 
^4-inch thick. After that, observations were taken with regard to the 
effect of hits of 6-inch projectiles upon the blindage thus improved. It 
would not be torn apart and the damage done consisted only of the iron 
sheets being thrown away and of a funnel-like hole 2/4 feet deep and 6 
to 8 feet in diameter. 

The result in general makes it evident that the essential thing is the 
thickness of the earth layer, while the beams and rails serve only to support 
the earth. 

The result has also shown that a layer of 3 feet is adequate for a field- 
gun projectile, while a 122-mm. projectile requires a thickness not below 
4 to 4/4 feet. 

IV. LOOPHOLES. 

The loopholes (bonnettes) made of sand bags are quite important, 
altho it must be admitted that the Japanese apparently did not favor them 
as much as we. 

Tests of rifle fire directed at loopholes were made in March, 1904, on 
the Kingchau position at the time of its fortification. A section on the 
redoubt No. 2 was selected and the best riflemen of the 2nd Company, 5th 
Regiment, were assigned for the tests. At first they fired from a distance 


13 


of 180 paces, with the result that three bullets out of the total five fell 
directly into the loophole (as it was clearly discernible, not being covered 
by anything); the second time the distance was 700 paces, and out of a 
total of eighteen bullets only two bullets fell into the loophole. 

The usefulness of loopholes is beyond doubt, but it increases greatly 
with their more compact construction. It is not enough to lay on the 
breastwork two sand bags, cover them with a third sand bag, and to say 
that the loophole is ready. Such a loophole would serve only for mark¬ 



ing distinctly the crest of the breastwork and the position of the rifleman. 
A good loophole should not be visible; from a distance it should blend 
into the breastwork, which can be reached by adding earth in front and at 
the sides; the opening of the loophole should not project on the sky over 
the outline of the breastwork, as we used to have at every step at 
Port Arthur. Those loopholes were so distinctly seen from the field 
that one could count them and, in that way, ascertain the number of 
riflemen in a given trench. Generally speaking, the constructing and 
the masking of loopholes constitutes a very delicate work requiring great 
attention. Here again I shall mention the trench of Fort No. Ill, where 
the loopholes were practically invisible. In order to conceal the opening 
of a loophole , it is best to add to the overhole cover behind the loophole a 



















14 


small curtain; then neither the opening nor the movements of the riflemen 
will be noticeable. 

V. DISTRIBUTION OF BLINDAGES IN TRENCHES. 

The question concerning the place of blindage constructions, that is, 
the question where the blindages should be located—in the trenches or 
outside of the trenches?—is very interesting, especially, because our opinion 
in this matter differs substantially from the Japanese view. On the 


Fig. 21. 



Fig. 22. 




Kingchau position and in Port Arthur we used to construct our blindages 
in the trenches (see Figs. 21, 22, 23, and 24), while the Japanese would 
apparently always construct their blindages outside of the trenches. 

Only at the construction of our second-defense line (in August) our 
blindages were made in the rear behind the crest of the mountain and 
were connected with the trenches by communication passes. I had 
opportunity to observe the Japanese blindages arranged as shown in Figs. 
25 and 26. 

The question is—which is better? Undoubtedly, the Japanese plan 
and the plan followed by us in constructing blindages of our second-line 
defenses in Port Arthur has this advantage, that the blindages do not 























15 


impede the communication service in the trench and do not occupy room 
needed for the firing line. But, for the purpose of protecting from as¬ 
saults, it is preferable to have the blindages in the trenches. Yet, it seems 
to me that the construction of blindages should be substantially modified, 
as the present blindages are not sufficiently protected either from indirect 
or even from direct fire. During the siege it has become apparent that 
the most reasonable type of blindages is the mine type, and much more so, 


On the: 2nd. Line of defense at Port Arthur. 




Fig. 26 

JBJ/n day e 
Sunday e 


Fig. 2 7. 



because such a blindage can be constructed simultaneously with the trench, 
not requiring much material, especially in case of hard soil. 

VI. THE MASKING OF TRENCHES. 

The trench should be masked to make it less visible from the field. The 
best method is to have the trench slopes of the same color as that of the 


















16 


surrounding locality. When the position is fortified ahead of time, it is 
useful to have grass seeds sown immediately after finishing the trench ; 
when the work is to be done hastily, the trench should be covered with 
sod. However, neither of these two methods will prove of much value 
if the exterior slope is too great. The usually accepted slope is 2 on 3, 
but in case of such slope, even after the best sodding , one can always notice 
the line at which general surface of the ground passes into the slope. In 
Port Arthur the gorges of Forts Nos. II and III were connected with the 
rampart known under the name of the “ Chinese Wall.” That rampart had 
been constructed by German engineers during the first fortification of 
Port Arthur, before the Chino-Japanese war. It is 7 to 9 feet high, is 
excellently adapted to the locality, and is all covered with grass of the 
same color as the grass of the locality in front of the rampart. But the 
exterior slope is very steep (1 on 1 to 2 on 3), and, consequently, the 
rampart, notwithstanding its excellent masking, is visible from afar. (See 
Fig. 28.) 

However, if the declivity be reduced to I on 2 , and, preferably, even to 
I on 3 , then , with good masking by sodding or by sowing grass, the trench 
can be constructed in such way that its breastwork will be entirely indis¬ 
cernible. (See Fig. 29.) 

Besides this method of masking, it is convenient to construct a false 
trench near the real trench—that is, behind or at' the side of the latter. 
But in such a case it would not be proper to make the false trench pur¬ 
posely too noticeable. Otherwise, the enemy may discover the deceit too 
early. 

In concluding the subject of masking, I shall mention here still another 
method pursued at Port Arthur. 

In Port Arthur at the depth of 1 to 1/4 feet from the surface the soil 
consists of yellow and red clay, followed by stones and then by rock. 
The slopes of hills were covered by thin grass—no sods could be cut on 
those slopes. The grass in cavities was very dense, but the sods could be 
taken only in thin layers. Good sods could be obtained only from the 
valley of the Lun-ho, far from the fortifications. Thus the work of mask¬ 
ing was proceeding very slowly* and was very expensive, t To make the 
work more rapid and less expensive, it was proposed to sprinkle the breast¬ 
works by means of watering cans with some special solution that would 
give the breastworks the same color as that of the surrounding locality. 
At first this proposition was lookt upon with skepticism, but after one bat¬ 
tery had been masked in that way and after the battery thus masked could 


*Most of the fortifications had been left unmasked. 

11.25 rubles and 1.50 rubles per square sazhen (49 square feet). 



17 


not be found with a field glass at a distance of 80 paces, the others would 
ask the person who had proposed the method to furnish the solution to 
them. This method was applied to mask three batteries,* but was not 
employed any more, as the coloring material was exhausted in Port 
Arthur. To color trenches may seem quite strange, and, besides, this 
method of masking may be objected to on the ground that the coloring 
matter may be washed by the first rain or carried away by the first wind. 
But, on the other hand, such a coloring solution can he prepared that it 
will not he washed away by rain and will strengthen the top particles of 
the earth , so that they will form a kind of a crust that can not be torn away 
by the wind. Moreover, by adjusting the component parts of the solution , 
we may succeed in obtaining a solution giving the color exactly similar to 
the color of the surrounding locality , which quality would make the coloring 



Fig. a8. 



Fig. 29. 


solution preferable to sods , as it is impossible to change the shade of the sod 
at will. Finally, with regard to the expense, the masking with a color¬ 
ing solution is also preferable, as it costs only one-fifthf of what must be 
paid for sodding. Besides, the work can be done more quickly and fewer 
men are required—a circumstance of great importance in time of war. 

This method can hardly be applicable in field engagements, except in 
cases when positions are prepared ahead of time. It would be advisable 
to make tests in this respect in time of peace. 

VII. DISTRIBUTION OF TRENCHES WITH REGARD TO 
FORTIFICATIONS. 

The relative distribution of trenches and of fortifications on all positions 
fortified in Kwantung during the last campaign was made according to 
one of the two plans described below. Thus on Kingchau the fortifica¬ 
tions were located somewhat in front of the trenches, while the trenches, 

*One small battery at Port Arthur was masked in this way with special care, 
and the result was that during the whole time of siege not a single projectile struck 
that battery. 

f20 to 35 kopecks per square sazhen (49 square feet). 





18 


beginning at the gorge angles of fortifications, had a concave trace. None 
of these fortifications were closed, but there was in the gorge a trench for 
communication and reserves 2 feet below the front face and flanks. All 
these fortifications were situated below the position, while the top of the 
position had the second tier of trenches and two closed fortifications, which 



could keep under fire the interior of the first-row trenches and fortifica¬ 
tions. The lower tier was connected with the second by passes of com¬ 
munication. (See Fig. 30.) 

The second plan was applied at Port Arthur to the position at the head 
of the aqueduct, closing the passage along the valley of the Lun-ho. 
That place had five fortifications arranged in such a way that the trenches 
were brought somewhat toward the front and the fortifications were in the 












19 


rear. This occurred from the following reasons : In June of 1903 Adju¬ 
tant-General Kuropatkin selected for the Aqueduct redoubt a hill in front 
of the water-reservoir galleries. The place was examined before the be¬ 
ginning of construction in February, 1904, and it was found that the con¬ 
struction of a redoubt on the outward top of the hill would leave a dead 
space behind where the enemy might collect after going around the re¬ 
doubt. To prevent this, the redoubt was built so much toward the rear 
that the above-mentioned dead space would be reached by the fire from 
the gorge of the redoubt. But, then, it became evident that there was a 


Fig 32. 



/ 

/ 

/ 


similar dead space in front of the redoubt, and, in order to avoid this dead 
space, it was necessary to extend the trenches to the front and to prolong 
them on the flanks to the Rocky redoubt (Skalistiy) on one side and to 
the Temple redoubt (Kumirnskiy) on the other side. There were, more¬ 
over, two lunettes constructed behind the latter. The trenches had a 
convex contour. Thus the second plan appears as shown by Fig. 31. 

Now we may take up the question as to how expedient each of these two 
plans has proved in the defense of the position. We must remark here 
that in both cases wire entanglements were made in front of the trenches, 
the only difference consisting of this, that the wire entanglements of the 
Kingchau position extended in front to a distance of 175 to 300 paces, and 
in Port Arthur only of 30 to 40 paces, while, besides, the exterior ditches 







20 


of the Kingchau position had been protected with nets of barbed wire, and 
the ditches of Port Arthur remained without wire impediments. 

When we examine the plan of the Kingchau fortifications, we see that 
the fortifications in that case formed what we may call the resistance pdrnts 
on the flanks of the intervals occupied by trenches. The trenches were 
somewhat incurved, and this characteristic, not interfering with their 
capacity of developing a strong frontal fire, permitted them, in acting con¬ 
jointly with the flanks of the fortifications, to concentrate a cross fire on 
any desired point. (See Fig. 32.) Such arrangement would make the 
enemy’s breaking thru the intervals between the fortifications almost im¬ 
possible, or, at any rate, extremely difficult. In order to capture such a 
position in case of a stubborn defense, the enemy must resolve to storm 
one or two of the fortifications, the capture of which may result in our 
abandoning the trench between them. As, however, the fortifications, by 
their profile, equipment, and armament, have a greater resisting power 
than the trenches, it is more convenient for us to have the enemy’s assault 
directed not against an interval, but against a fortification. 

It is obvious, from what has been said, that it is more expedient to make 
the fortifications open rather than to have them closed, or, in other words, 
in this case a lunette is preferable to a redoubt, as, in case of an eventual 
capture of a lunette by the enemy, we shall be in position to open fire 
upon the interior of the lunette from the fortifications behind it, thus pre¬ 
venting the enemy from establishing himself there, and we may be able 
to make an immediate counter attack upon the captured lunette. On the 
other hand, if the fortification is closed—that is, if it is a redoubt with a 
gorge, and even with an external ditch, then the enemy, after capturing it, 
will have a full opportunity to establish himself so strongly that no counter 
attacks will drive him out, and the consequence will be that sooner or later 
the interval will also have to be given up. All this was excellently under¬ 
stood by the Japanese during the engagements of May 13 (May 26, new 
style) on that position. They understood all that so well that they even 
did not try to attack an interval. They tried to storm the lunette No. 4, 
but both attacking companies perished at the wire entanglements, after 
which the Japanese would not make any more attacks and would occupy 
the positions only after our evacuating them. 

It was quite different at the very first storming of the aqueduct position 
at Port Arthur. (See Fig. 33.) Here the enemy attacked the Aqueduct 
redoubt and captured the trench in front and even the exterior ditch of the 
redoubt, whereupon we immediately evacuated the neighboring sections. 
A heroic counter attack of the frontier guards drove the Japanese out of 
the exterior ditch the following night, but the trench in front remained in 


21 


their hands, and they availed themselves of its possession for the gradual 
attack upon the redoubt. They succeeded soon—on September 7 (Septem¬ 
ber 20, new style)—and the result was that we had to evacuate at once 
all the neighboring trenches, as well as the Rocky (Skalistiy) and the 
Temple (Kumirnskiy) redoubts. 

As has been stated above, the Temple redoubt was constructed closed 
and had on the hills behind it two lunettes. The capture of the Temple 
Tedoubt was immediately followed by the evacuation of the lunettes almost 
without a shot. There is no doubt that the result would have been quite 




different if the Rocky and the Temple redoubts, and especially the latter, 
were not closed, but open; and if, on the other hand, the lunettes Nos. 1 
and 2 had been constructed as redoubts, then there would be no appre¬ 
hension of turning, the enemy would not be permitted to establish him¬ 
self in the captured Temple redoubt, and our counter attack would have 
been much easier. Thus, from the two examples described above, we 
may draw the following conclusions: Fortifications and trenches must be 
arranged on the position in such a way— 

(1) That they shall be in position to support one another; 

(2) That the fortifications, serving for resistance points, shall be built 
somewhat toward the front to make practicable the defense of the intervals 
from the flanks; 

(3) That the trenches shall begin from the gorge angles of the fortifi- 







22 


cation and from the middle of the flank faces and shall have a somewhat 
incurved contour that would permit to develop a strong front fire upon the 
locality extending in the front, being, at the same time, capable of sup¬ 
porting the fortification; 

(4) That the fortifications of the front line shall have the form of 
lunettes; and, 

(5) That the fortifications in the rear shall be closed—that is, they shall 
be constructed as redoubts. 

Only in one case a redoubt may be preferable to a lunette in the first 
line of defense—namely, in fortifying the flanks of a position, where turn¬ 
ing could take place. 

For the purpose of final demonstration of the correctness of the view 
that the fortifications and the trenches should cooperate in defense and 
that the first line should have lunettes, instead of redoubts, I shall give 
here another example. 

In Port Arthur two redoubts, No. 1 and No. 2, were constructed on 
two medium heights in the interval between the Forts No. Ill and No. II, 
but they were constructed in such a way that the ravines on the sides 
could not be reached by fire from the breastworks of the redoubts and 
that a dead space remained in front. For this reason the redoubts were 
surrounded by trenches. Ramparts extended from the gorges of those re¬ 
doubts, joining the so-called “Chinese Wall” at 200 paces in the rear, as 
shown on the sketch drawing. (See Fig. 34.) 

It is obvious that from the sections of the “Chinese Wall” leading out to 
the redoubts no aid could be expected; it could be obtained only from 
those parts of the wall which were lying in the rear. This circumstance 
facilitated the storming of the redoubts, and the gorge in the redoubts en¬ 
abled the Japanese to turn the redoubts immediately to their advantage, 
prevented the firing at their interior, and was the cause of the failure of 
our sorties to those fortifications. It might have been quite different if we 
had not had any of those disastrous gorges—that is, if we had lunettes, 
instead of redoubts. 

Only in one place the work had been done in the proper way, and the 
result was excellent. I am speaking about Kuropatkin’s lunette. (See 
Fig. 35.) That lunette had been captured by the Japanese, but they were 
driven out, owing to the aid given by the Fort No. II and to the fact that 
the interior of the lunette could be kept under fire from the “Chinese Wall” 
lying in the rear. Had it been a redoubt, instead of a lunette, the Japanese 


23 


could not be driven out of it, and, then, it would be necessary to evacuate 
Fort No. II. The Japanese understood this quite well. 

VIII. TYPICAL FEATURES OF FIELD FORTIFICATIONS. 

The substantial difference between the fortifications and the trenches 
lies in the fact that the former have exterior ditches, while, with regard to 
other features, the difference lies in the relative size of the composite parts. 
Consequently, we may look upon a fortification as a broken trench with an 
exterior ditch in front of it, and thus everything that has been said above 




concerning the construction of trsnches, and every requirement applicable 
to a well-equipped trench, is in the same degree applicable to a fortifica¬ 
tion.* The resistance of fortifications against storming, in comparison 
with the resistance of trenches, is made greater by those very impediments 
in front—the exterior ditches which the enemy must overcome under a 
direct grazing fire of the garrison. Naturally, the greater the number of 
impediments presented to the storming troops, the stronger is the fortifica¬ 
tion. Consequently, in constructing a fortification, all the available means 

*The Japanese construct closed fortifications without exterior ditches—as closed 
trenches. 










24 


should be applied to make the exterior ditch as much as practicable hard 
to overcome. These means are: 

(1) Deepening and widening the ditch as far as practicable under the 
circumstances, when the kind of the soil, the time, and the number of 
men available are taken into consideration; 

(2) Constructing in the ditch hinderances impeding its crossing (this is 
very important, especially when the soil and other circumstances will not 
permit to deepen the ditch sufficiently), and 

(3) Adopting for the fortifications such a trace as would permit to 
sweep the ditch partly by flank and partly by front fire. 

All the fortifications in Port Arthur and on the Kingchau position had 
their breastworks built above the natural level of the ground, altho this 
was by no means in every case necessary. Thus, the Rocky redoubt 
(Skalistiy redut ), built on the summit of a sharp-pointed hill, could have 
been cut in the ground, and, likewise, the Aqueduct redoubt ( Vodopro- 
vodniy redut ) should have been lowered considerably and made in this way 
less noticeable. Generally speaking, war experience has proved : 

(1) The desirability of constructing breastworks of natural ground, and 
not of the material brought and laid on the ground above the natural level; 

(2) The necessity of constructing the blindages in fortifications by the 
“mining system,” and 

(3) The necessity of providing appliances for safe observation of the 
enemy during the artillery fire preceding the storming.' 

During the construction on the Kingchau position in February, 1904, 
four fortifications were built and four former fortifications were rebuilt. 
Three of the new fortifications were built as lunettes, differing from the 
accepted form of lunettes in this, that they had in their gorge part a trench 
for communication with the trenches beginning at gorge angles. The 
fourth fortification, closing our right flank, was a redoubt. All these 
fortifications were constructed below the position on a very gently sloping 
ground. Breastworks, in this case, were indispensable, but there was no 
necessity of making them very high, as a breastwork of 3 feet would give 
a very good sweeping fire. Only the redoubt No. 2 (right flank) required 
addition of material below the natural level, to a height of 4/4 feet, but 
this was caused by the exceptional conditions—hard soil. In the remain¬ 
ing three fortifications, as has been stated above, the breastworks were 3 
feet high and would perfectly blend with the adjacent trenches. The 
fortifications rebuilt on the top of the position had breastworks only 2 feet 
high. 

For the sake of illustration I will give a minute description of the 


25 


redoubt No. 2, the lunette No. 4, and the redoubt No. 8, as those are the 
most original. 

Redoubt No. 2 (Fig. 53) was built on the extreme right flank of the 
position. Its object was to prevent the enemy’s breaking thru between 




Fig.33 


the railroad track and the Mandwau Bay and to prevent the turning of the 
position. Its front was to serve for sweeping the outskirts of Miadotung 
village and the space between the village and the railroad track. The 
left flank supported the section of the trench to the left of the redoubt 
and could reach by flank fire the wire entanglements in front of those 
sections. The right flank was to sweep the seacoast as far as the village 













26 


of Miadotung. A trench extended from the right gorge angle, bending 
to the right, enclosing the well at the village of Tidiateng; its object was 
to prevent the turning by wading across the shallow part of the Nandwau 
Bay. The fortification was a redoubt, as it was a flank fortification and 
could be fired at from the rear. 

That fortification was to be garrisoned by one company; consequently, 
the line of fire was estimated for 300 riflemen, with 75 in the reserve, one 
rifleman being assigned per sazhen (7 feet). The profile of the redoubt 
was made above the natural level, 4j^4 feet high, because the soil was 
rocky and so hard that, with our intrenchment tools, we could dig only to 
a depth of foot. For this reason and for the sake of finishing the work 
as soon as practicable, we decided to build the parapet above the natural 
level. The earth, taken with shovels from the surrounding farming 
lands, was brought in bags and baskets. 

After explosives had been obtained from Port Arthur, we constructed 
the exterior ditch, deepening at the same time the interior ditch. Then 
the profile of the fortification had the form shown in the sketch drawings. 
(See Figs. 2 and 3.) The exterior ditch was 0.5 sazhen (3/4 feet) deep, 2 
sazhens (14 feet) wide at the bottom, and 2.5 sazhens (17/4 feet) wide at 
the top. As it was impossible to widen or deepen the ditch, we decided 
to make in it barbed-wire obstructions with tridents on tops of iron stakes. 
A glacis with a very gentle slope protected the wire "obstructions from being 
observed and masked excellently the whole fortification. 

• Traverses, constructed inside, perpendicular to the line of fire, were cov¬ 
ered with bags filled with clay and had blindages between them; one blind¬ 
age was made for the company commander; another—in the gorge—for the 
wounded and for telephone; still another—for the kitchen—and the rest for 
the garrison. One blindage, in a small ditch in the rear, was made for a latrine. 

Ammunition recesses were constructed at certain intervals in the breast¬ 
works. The entire fire line was provided with loopholes having detach¬ 
able blindages, loophole covers, as a protection against shrapnel. 

Blindages were made of Chinese beams, 12 inches thick, and of an earth 
layer 3 to 3/4 feet thick. The gorge was protected with a rear traverse. 
On the projecting angles of the front face two barbettes were raised for 
counter-assault guns and at their sides pits were made for storing them.* 

*The battle of May 13 (May 26, new style) demonstrated, beyond doubt, the use¬ 
fulness of counter-assault guns in redoubts. The enemy, having silenced our artil¬ 
lery, decided to bring his batteries forward. One of these was posted at a distance 
of 2,400 paces from the redoubt No. 2. Thereupon, Captain Stempniewski com¬ 
manded that the two guns be taken out from their pits and placed on the barbettes and 
ordered to fire at the battery. Of course, the other batteries of the enemy opened 
fire upon our redoubt, but the battery that had been brought forward was compelled 
to withdraw far to the rear and, after that, would not come any closer. 



27 


The projecting angles were all rounded up. The parapet was 14 feet 
thick; the declivity of the exterior slope was in the gorge, 1 on 1, and at 
the front face, 2 on 3. 

Directly from the gorge angles extended a trench raised likewise above 
the natural level and provided with numerous blindages and loophole 



covers, which was due to the care of Captain Stempniewski, commander 
of the 2nd Company of the 5th Regiment, the first company commander 
detailed to occupy that section. Great zeal and toil had shown this illus¬ 
trious officer, and it is a pity that he was killed on the High Mountain 
(203-meter hill) at Port Arthur. 

When we think of the role played by that fortification in the engage¬ 
ment of May 13 (May 26, new style), we see that the fortification fulfilled 













28 


its task excellently, as it prevented the enemy from breaking thru and 
turning the position. At the same time, thanks to the numerous blindages 
of all kinds, it gave to the riflemen such excellent shelter that during the 
whole day of fighting the garrison had only one casualty—one wounded .*■ 

The lunette No. 4 (Fig. 52) served as one of the resistance points 
of the trench, bending around the lower position. The object of its 
front and flanks was the following: The front face was to keep under 
fire the railroad station, railroad tracks, and the space between the 
tracks and the position. The left flank was to defend our trench as 
far as the well No. 5, and the right flank was to guard the approaches 
to one-half of the interval between itself and the lunette No. 3. A 
trench of communication was constructed in the gorge. The profile 
of the lunette was 3 feet deep, the parapet was 14 feet thick, the 
depth of the exterior ditch was 0.5 sazhen (3}4 feet), and its width 
2 sazhens (14 feet) at the bottom and 3 sazhens (21 feet) at the top. 
The ditch had barbed-wire entanglements, with stakes having tridents 
on their tops. The inclination of the exterior slopes was 2 on 3. 
The construction of traverses and the location of blindages is shown 
on the sketch. The front face of the fortification was connected by 
communication passes with the communication trench of the gorge. 

The lunette* played its role of a resisting point excellently, as it 
stood the assault, brilliantly repelling the Japanese.t It was the only 
point of the Kingchau position which the Japanese stormed. By 
way of criticism, we may state that, as became evident later on, a 
defect lay in the insufficient number of traverses on the front face 
(only one). During the battle the front was under flank fire from 
Liutapu village. This should have been foreseen and the number 
of traverses should have been increased without relying on the suppo¬ 
sition that the city of Kingchau would not be captured. 

The interesting subject of the plan of the lunette No. 4 will be 
taken up in the chapter on adapting the fortifications to the locality. 

Redoubt No. 8 (Fig. 39) was situated on the top of the north slope 
of the position. It was to serve as a resistance point in case of retreat 
from the lower tier of trenches. It was situated in such way that its 
left half gradually sloped down from the line AB, while its right half 
was horizontal. (See Fig. 36.) The left half, consequently, was 
protected from the right, and the right half, likewise, was not affected 
by the flanking fire. The front face was connected by a zigzag pass 

* Garrisoned by one company (the 6th Company of the 5th East-Siberian Rifle 
Regiment. 

fThis has been described in full in the chapter on “Artificial Obstacles.” 



29 


of communication with the gorge section, which was almost entirely 
occupied by hlindages for the wounded, the telephone, and the garri¬ 
son, while the front face had a blindage for officers.* The blindages 
were constructed as follows: A row of Chinese beams, 15 to 20 inches 
thick; boards, 2 inches thick, laid across the beams; and, on top, a 
layer of earth, 3 feet thick. Besides the blindages there was a gorge 
in the rear, with a great number of traverses. The interior ditch was 
very deep—5 >2 feet—and had two steps. The breastwork was only 2 
feet high. The exterior ditch was very small (Profile No. 2). A 
trench extended from the right gorge angle. 

In the battle of May 13 (May 26, new style) that redoubt was not 



F 16.41 



utilized at all. We evacuated it when the enemy was as yet at a 
distance of 500 paces in front. The blindages of the left half were 
destroyed by 10-inch projectiles of gunboats. The good qualities of 
the redoubtf were the great number and independence of blindages, 
the great depth of the interior ditch, and the well-developed system of 
communication passes; while the negative side was the lack of an 
exterior ditch and lack of big traverses on the front face, which had 
only small traverses made of sand bags. 

Description of thes$ three types of fortifications shows that they all 
had breastworks constructed above the natural level, feet in the 
redoubt No. 2, 3 feet high in the lunette No. 4, and 2 feet high in 
the redoubt No. 8. Such breastworks were requisite owing to the 
necessity of proper enfilade fire. Yet I believe that the redoubt No. 8 
could have been built a little farther in the rear, and then it could 
have been made still deeper, while the breastworks above the natural 
level could be dispensed with—there should, in every case, be an en- 

*The redoubt had 226 square paces or 24 square sazhens (1,176 square feet) of 
blindages. 

tConstructed in 1900, rebuilt in 1904; new blindages built. 






30 


deavor to dispense with such breastworks—and, instead of the blind¬ 
ages described above, deep pits, according to the mining methods, should 
have been built in the ground. Besides, we see that none of these 
fortifications had any appliances for safe observation of the enettiy.' 5 ' 
Something should always be provided* for that purpose, as it is a 
matter of great importance. 

The space between the riflemen of the fire line, when we take into 
consideration the strength of modern artillery fire, should not be be¬ 
low 3 paces. It is dangerous to post the men closer, and it is wrong 
to have them farther apart. One-half of the garrison should be kept 
in reserve in the same fortification. Consequently, if a company con¬ 
sists of 300 men, then the firing line—front face and two flanks— 
should be estimated for 150 men, or, in other words, the firing line 
should be 150 sazhens (1,050 feet) long. 

The interval of 3 paces between the riflemen should be equipped 
with traverses and blindages. It is desirable to have for each man a 
kind of a hollow cut in the breastwork and covered on the sides with 
small traverses.t 

For protecting the flanks of the fortification against enfilade fire, it 
is best to make the flanks indented (cremaillere). The fortification 
should, moreover, have separate blindages for officers, for the tele¬ 
phone station, for the first aid to the wounded, and for latrines. 

The interior ditch must be sloped so that water may flow to the 
gorge angles, which should be equipped with pipes, made of wood if 
none other are available, for the outlet of water. The construction 
of blindages for latrines and appliances for the outlet of rain water 
are, in fortifications, very important and are indispensable just as 
much as the construction of vital parts, such as the exterior and the 
interior ditches, traverse, etc. A fortification is a fighting barrack, 
and it is our duty to take proper care of its residents. 

IX. ADJUSTMENT OF A FORTIFICATION TO THE LOCALITY. 

The proper adjustment of a fortification to the locality can be 
effected by observing the following rules: 

(1) The fortification and the locality should blend, so that the 
fortification shall not project above the ground as a construction dis¬ 
cernible from afar; 


^Observations were made thru loopholes. 
fThe trench in front of the Fort No. III. 



31 


(2) No dead spaces should be left, whether in front or on the flanks; 
enfilade should be efficacious; 

(3) The fronts should be protected against enfilade fire; 

(4) Communication with the reserve should be secure. 

In order to conform with these rules, it is necessary to examine 
thoroly the site selected for construction, to take into consideration 
all the circumstances, and, after staking out the construction, to go 
to the supposed positions of the enemy, and to observe the site from 
these positions. Very valuable guiding information may be obtained 
from such inspection. 

The first condition can be complied with by making the fortifica¬ 



tion entirely by excavation, below the natural level, or, in other 
words, without constructing a breastwork above the natural level. 
Then the outline of the hill will not change, and from a distance it 
will seem as if nothing were built on the hill. 

Occasionally, in order to keep the nearest approaches to the posi¬ 
tion under good sweeping fire, it is necessary to do some levelling.* 
It is better to shovel off 200 to 300 cubes (— cubic feet) of unnecessary 
earth, than to have, by leaving them, a dead space right in front cf 
the riflemen. 

During the fortification of the Kingchau position a continuous 
trench was constructed around the position, and then the trench was 
strengthened by several fortifications raised on it as its resistance 
points. In this way the proper adjustment of these fortifications to 
the locality was limited by the outline of the trench. This was 
brought about by special circumstances independent of the construct- 


*In fortress warfare or in case of preparing positions ahead of time. 







32 


ors; none the less the reverse order of construction would be the 
proper one. 

When a site for the lunette No. 4 was to be selected, the following 
circumstances bad to be taken into consideration: It was necessary to 
make it practicable for the right flank of the lunette No. 4 as well as 
for the left flank of the lunette No. 3 to keep under sweeping fire all 
the interval between them, as the character of the locality indicated 
great probability of an attack upon that interval. 

As., however, the lunette No. 3 would not keep that interval under 
good sweeping fire beyond the line AB (Fig. 37), the site for No. 4 
was conditioned by the limit from which it would be still practicable 
to sweep the other part of the interval as far as AB. That limit is 
marked with the letter C on Fig. 38. 

Of course, more satisfaction could be expected if the fortification 
could be constructed on. the site marked D, as from that spot the fire 
to the right would be stronger and the deep and steep ravines sur¬ 
rounding that spot on all sides would make the protection from the 
storming more effective. But, on the other hand, the effect of the 
left-flank fire of that site would, unfortunately, be very insignificant. 
Consequently, C was selected for the site of the fortification and the 
dead space in front was avoided by levelling, as shown on the drawings. 
(See Figs. 38 and 41.) 

Thus the fortification had in front a ditch, three ravines, and two 
rows of wire obstacles; it could sweep the locality before it with ex¬ 
cellent fire and it blended perfectly with the surrounding country both 
in outline and in color. 

Communication with the rear was effected by adapting a ravine 
for that purpose.* 

X. FIELD BATTERIES FOR LIGHT RAPID-FIRE GUNS. 

Discovery of smokeless powder is one of the most terrible factors 
in modern warfare. It was followed by the introduction of rapid- 
firing artillery, which has revolutionized the artillery service and partly 
also the art of fortification, demanding at the same time a complete 
change of army tactics. This is-the essential cause of the peculiar 
role played by fortifications in modern campaigns. 

Up to the present time the ideal artillery position was one high 
above the locality, giving good view and making it possible to keep 
the locality under good sweeping fire. Batteries were on tops of 

* Other examples illustrating the adjustment of fortifications to the locality will be 
given in detail in my notes on “ Fortification of the Kingchau Position in 1904.” 



33 


heights without any masking and direct aim was employed. Nowa¬ 
days such batteries can be used only irr exceptional cases. It is pref¬ 
erable to place the batteries on the opposite slopes of hills, in hollows, 
in ravines, within the borders of groves, or in some other covered 
places;* that is, speaking generally, in such places where the bat¬ 
teries would be concealed from the enemy, making it hard for him 
to discover them. 

In the engagement of May 3 (May 16, new style) at Sashiliteza 
and at Chafantan one of our batteries moved forward, occupying an 



open position on the top of a hill. It had hardly prepared itself for 
firing when it was all of a sudden covered by a great number of pro¬ 
jectiles from the side of the enemy who, at least five times as strong 
as we, had posted his batteries in such a way that they were entirely 
invisible. Within a quarter of an hour all officers of our batterv were 
wounded and one-half of the men killed. In the same battle 
one of our other batteries took position on the opposite crest and, 
with its precise fire, stopt the advancing enemy, compelling him to 
retreat, and yet that battery suffered no loss. This was our first ex- 

* At Port Arthur the Japanese would often place their field artillery in “fanzas,” 
firing thru the windows. 





















34 


perience. In all following engagements our field artillery was always 
concealed. ■ 

Thus, on battlefields with hills, batteries should be posted on the 
opposite sides of the summits; while on plains some hollow or ravine 
can always be found to suit the purpose. 

However, in some cases the method mentioned above will not be 
feasible, when, for instance, the opposite slope of the hill is very 
steep, or for some other peculiarity of the battlefield. Then the 
battery will have to be posted on the front slope, but it must be 
masked so as to be invisible. In the construction of such a battery 
one should not rely upon the absence of smoke, as it must be borne in 
mind that at every discharge, with the gases thrown with immense 
force out of the muzzle, a small cloud of dust appears above the 
breastwork and that very cloud of dust may betray the position of the 
battery. 

I shall take up here two cases from among the batteries constructed 
by us, namely, the battery for87-mm. rapid-fire guns on the Kingchau 
position and the battery for 3-inch field guns in Port Arthur. The 
former (Fig. 40) was constructed for four 87-mm. guns on the front 
crest of the hill. During the construction the top of the hill was 
not touched, the site selected for the battery was a little below the 
top and was excavated so that there was no necessity of raising 
breastworks above the natural level. In the rear of the emplacements 
a blindage was made to cover the ammunition recesses. The earth 
layer on the blindage made the excavation invisible. The guns were 
separated from one another by traverses. At the breastwork before 
the gun a small ditch was made, with a cover protecting against 
shrapnel. The masking was so effective that the battery was in¬ 
visible even at a short distance. At the same time the battery No. 1 
was reconstructed. It had been constructed as early as 1900 and was 
also on the front slope; so it was visible from the front, tho, in 
masking, the color of its earthworks was made to blend with the color 
of the locality. For the sake of misleading the enemy we constructed 
behind the battery, on the very summit, a rear traverse, making it as 
much as practicable more visible. During the battle the enemy mis¬ 
took the rear traverse for a real battery, directing upon it his fire. 

The Port Arthur batteries for 3-inch guns were constructed on the 
opposite (interior) slope. 

The battery, or the so-called open caponiere No. 3, for two 3-inch 
guns, constructed by me in May, is shown in Fig. 43. Its object was 
to sweep by flank fire the approaches to the Fort No. Ill and to the 


35 


redoubt No. 2. 1 hat battery (caponiere) was situated on the re¬ 

verse slope of the height and consisted of two excavated emplacements 
having between them a traverse with a pass, the traverse covering the 
accommodations for the men and the ammunition recesses constructed 
by excavation. The traverse, not above the natural level, was made 
of natural soil left after the excavation of the emplacements. The 
battery had no mounds above the natural level, and all the earth that 
had been taken out was removed. The place around the battery, 
trampled and covered with dirt during the work, was cleaned and 

F)G. 45. 

•< 70‘76b4' * 



colored to the same color as the remaining portion of the hill. The 
battery was invisible from the front. (See Fig. 42.) 

That battery gave substantial aid to the redoubt No. 2 on August 
8 and 9 (August 21 and 22, new style) and, until its capture, impeded 
effectively the Japanese attacking the Fort No. Ill by open assault. 

In the construction of batteries for 3-inch rapid-fire guns in all 
other cases the rule was not to construct breastworks above the natural 
level, and all the batteries raised on the Mitrofaniev and the Laperovaya 
hills, as well as on other points, were constructed in conformity with 
that rule. 


XI. ARTILLERY COVERED BY INFANTRY. 

Batteries constructed in Port Arthur during the siege were protected 
by bodies of infantry stationed in front and at the flanks of the bat¬ 
teries. The distance between the battery and the infantry protecting 
it would vary considerably. Thus, at the open caponiere No. 3 the 




36 


distance was 200 paces (see Fig. 43); and the battery situated in the 
interval between the Zaredutnaya battery(Battery Behind the Redoubt) 
and the Big Eagle’s Nest had its protecting infantry in front at 180 
paces and on the flanks right close to them. The battery on the 
Mitrofaniev height had protecting infantry only on the flanks and the 
batteries on the Laperovaya height were in front protected by a trench 
at a distance of 50 paces. (See Fig. 24.) 

The protection shown in Fig. 44 fulfilled its object very well, and 
there were no complaints that the artillery in the battery and the in¬ 
fantry in the front trench would be routed simultaneously. 

The measures for the protection of batteries against assault I shall 
analyze separately; here, however, I shall remark that the construc¬ 
tion of only one row of wire entanglements around the battery is not 
sufficient. The assault during the night of August 10 and 11 
(August 26 and 27, new style), when the Japanese succeeded in cap¬ 
turing the Zaredutnaya battery (Battery Behind the Redoubt) and 
getting to the Eagle’s Nest, has demonstrated adequately that such 
obstacles can easily be overcome at night. 

When a battery is constructed on a plain, the distance between the 
battery and its protecting trench should be increased to 400 paces. I 
believe, that in settling this question, the experience with the fire of 
light guns on the Kingchau position may prove of some value. 

In the battle of May 13 (May 26, new style) on the Kingchau po¬ 
sition our field artillery was posted behind the position at a distance 
of not less than 2/4 versts (1.65 mile) from the trenches. 

XII. DEFENSIVE OBSTACLES. 

Among a number of artificial obstacles wire entanglements and 
mines, especially the former, were used most extensively. Palisades 
can hardly be used nowadays; abatis were not used, owing to insuffi¬ 
cient supply of wood in the land. Military pits (wolf pits) were not 
used to any extent in Port Arthur, because the soil was too hard. 

Stakes set checkerwise were used only in one case (on the Cossack 
place), but without satisfactory results. Wire entanglements, how¬ 
ever, were employed very extensively and proved in many cases very 
useful. 

The first time that the Japanese encountered this obstacle was on 
the Kingchau position. There the entanglements were constructed 


37 


almost around the whole position, with the exception of a small space 
-on the left flank. 

(a) WIRE ENTANGLEMENTS AND FOUGASSES. 

W ire entanglements consisted of five rows of stakes set checkerwise 
with wire nets drawn on them, made of wire 3 to 5 mm. thick. The 
nets were usually 3 sazhens (21 feet) wide, tho in some places onlv 
2)4 sazhens ( 17/4 feet) wide. Uneven rows of stakes were 2)4 
arshins (70 inches) high and even rows 1arshins (49 inches) high. 


Fig 47 Fig. 48 




Fig. 50. 


Fig.49. 


I he stakes were driven into ground to a depth of 14 inches. The 
nets were laid in front of trenches at a distance of from 170 to 375 
paces, depending upon locality. At certain intervals outlets were left 
in the entanglements to make counter attacks practicable. Outlets 
were made in such a way as not to be visible from the field. (See 
Fig. 45.) The nets were not covered. To make them less visible 
from a distance, their white stakes were smeared with wet clay and 
earth. Only one section of the entanglements was totally concealed 
and it played the most important role. 

At 375 paces in front of the lunette No. 4 there was a very deep 
double ravine (Fig. 46), invisible from the front. In that ravine was 
laid the net, as shown in the drawing. 

The Japanese must have known about the ravine, and they planned 
to reach our position by that way. With this object in view two 
companies started from Huang village, marching at first along the 




















38 


river and then running to the ravine. However, when thev reached 
the ravine, they were stopt by wire entanglements and all perished 
under our volleys. 

This is a fine illustration of the great usefulness of wire entangle¬ 
ments concealed from the enemy so that they become an unexpected 
surprise. But it is necessary to utilize the surprise, or, in other 
words, it is necessary to have the entanglements within the reach of 
good sweeping fire. 

Some instances were observed where a cover for wire entanglements 
was constructed in such way that the enemy, upon reaching it, could 
utilize it as a defensive protection for himself. This should not be 
permitted to occur. 

During the numerous assaults of Port Arthur wire entanglements 
played a very important role. However, if masked, they would have 
proved still more useful. 

For overcoming these entanglements the Japanese used wire cutters, 
pliers, etc., destroying our entanglements usually at night. 

As a variety of this kind of obstacle we used barbed-wire entangle¬ 
ments for exterior ditches of Kingchau fortifications and for closing 
the outlets of ravines on the left flank. To make such entanglements 
difficult to overcome by means of fascines or kaoliang mattresses, 
sharp iron tridents were set on the stakes. (See Fig. 48.) Another 
variety—electric fences—promises to prove one of the most powerful 
weapons of defense, but it must be prepared in time of peace. 

In Port Arthur fougasses were used in great quantity. They proved 
very useful at the storming of the Ugloviya Mountains (Angular 
Mountains), of the battery letter B,* and in other places. Fougasses 
laid in one row do not present a great impediment. It is necessary 
to lay the fougasses in several rows, and the last row should be laid 
as near as practicable to the fortifications, in order to utilize the brief 
panic following the explosion and to repulse the enemy with bayo¬ 
nets. Single fougasses carried forward to a distance of 300 to 400 paces 
will not stop the enemy. 

ib) OTHER ARTIFICIAL OBSTACLES. 

Besides the above-mentioned obstacles there were used in Port 
Arthur: (1) snares of thin wire;t (2) boards with nails (see Fig. 49), 

* Battery letter B—in the original “battery letterThe translator has noticed, 
that, in some cases, the original text, in referring to Latin lettering of drawings, 
would use Russian letters. All such cases have been corrected in conformity with the 
lettering of the drawings. In this particular instance no drawing is referred to.—V. J. 

f Common, like those used for birds. 



39 


and (3) wire figures. (See Fig. 50.) The first-mentioned obstacles 
were used as defense against the storming of the fortification No. 3, 
and the second-mentioned, on the Fort No. Ill and on the Kurhan- 
naya battery (or Kurgannaya battery—Graveyard battery). On the 
fortification No. 3 such snares were laid on the glacis and on the sur¬ 
face of the breastwork, the free end of the snare fastened to the 
ground with a peg and masked. 

I can not tell whether such obstacles were of much value during the 



attacks, but I believe they were very useful, as I remember that on 
one occasion our own guard, going around the fortifications, got en- 

tangled in snares. . - 

As to the boards used as defensive obstacles, old boards of gray 
color 1 & inches thick, were taken and had nails 3, 4, and 5 inches 
long driven in on both sides. To prevent the boards from being torn 
off they were fastened with anchors and were laid on the tops of 
breastworks of the fort and on breastworks of some other trenches. 
As they were not noticeable, they presented a serious obstacle, appear- 










40 


ing just at the time when it was thought the storming had been suc¬ 
cessful. Eyewitnesses say that the boards were very useful and seri¬ 
ously detained the Japanese. In some cases one could see corpses literally 
nailed to the spot. 

As to the wire figures, they were made of iron bars 8 to 10 mm. 


He. 53. 




Secf/on a/os?gr A/o.2. 


thick. The figures had the form of cubes, truncated pyramids, prisms, 
etc., with ends twisted at the angles. (See Fig. 50.) 

Such figures can be used whenever it is necessary to bar some nar¬ 
row space; then they are thrown into that space and connected with 
wire. They can not do any particular harm. Their construction 
depends upon the existence of shops and upon a supply of iron rods 







































41 


of a given thickness. Consequently, application of such obstacles in 
field engagements is hardly practicable. 

In finishing my notes, I must express here my opinion—a result of 
many observations during the war: In order to make the engineering 
work a full success, it is necessary never to hurry up with the work. 
It is better not to do as much, but to do the work well; to finish what 
has been begun, rather than to start nervously one thing, then another; 
to have many things half made and none finished in full. Aside from 
other causes, this is the result of a nervous care, constant expectation 
that the enemy may soon appear. 

Everything is done hastily. Then days pass and the enemy does 
not appear. Less hurry, but more cool blood and success can be 
guaranteed. 



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